Citation Nr: 1009901 Decision Date: 03/16/10 Archive Date: 03/24/10 DOCKET NO. 07-13 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for upper and lower respiratory disorder, claimed as asthma. 2. Whether new and material evidence have been submitted to reopen the claim of entitlement to service connection for residuals of a right leg crush injury. 3. Whether new and material evidence have been submitted to reopen the claim of entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to June 1993. Thereafter, the Veteran served with the Army National Guard until August 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After a review of the record, the Board has determined that further development is necessary before the Board adjudicates the claims on appeal. As an initial matter, the Board observes that the RO adjudicated the issues of entitlement to service connection for upper and lower respiratory disorder as a new and material evidence claim. However, additional evidence associated with the claims file subsequent to the original adjudication of the claims includes service records. The service records document difficulty breathing, coughing and wheezing in 1992. Under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that existed and had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim, not withstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). As the additional service records associated with the claims file relate to the claimed in- service event, injury or disease, it is considered relevant evidence. Thus, the Veteran's original service connection claim for a respiratory disorder should be reconsidered without requiring the submission of new and material evidence. The record shows that the Veteran had active service from June 1989 to June 1993 with service in Southwest Asia theatre of operations between December 1990 and April 1991. The Veteran also served in the Army National Guard from June 1993 to August 1996. The claims file contains treatment records from April 1992 to November 1992 and June 1994. Accordingly, it appears that some of the Veteran's service treatment records are not associated with the record. VA has a duty to assist the veteran in obtaining or confirming the unavailability of his active duty service treatment records that are not currently included in the record on appeal. 38 U.S.C.A. § 5103A(c). VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the veteran's claim for a benefit under a law administered by the VA. 38 U.S.C.A. § 5103A. Whenever VA attempts to obtain records from a Federal department or agency, the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3). In this case, only one attempt has been made to obtain all of the Veteran's service treatment records. Therefore, the RO should conduct a search for the Veteran's service treatment records to include his service with Army National Guard from June 1989 to August 1996. The Veteran contends that his respiratory disorder, claimed as asthma, is related to his military service. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence shows that the Veteran has a current diagnosis of asthma and COPD. The Veteran's service treatment records show complaints of coughing, wheezing, crackling and congestion in his lungs and he was treated with an inhaler. In addition, the Veteran was treated for bronchitis in 1992. The Veteran contends that his asthma started during Desert Storm between December 1990 and April 1991 and he has had problems asthma since military service. Based on the foregoing, the Board concludes that a VA medical opinion is necessary in order to decide the Veteran's claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO should attempt to obtain all of the Veteran's service treatment records and hospitalization records to include his service with the Army National Guard from the appropriate personnel department for the period of active service from June 1989 to June 1993 and Army National Guard service from June 1993 to August 1996. If no records are available, the RO should attempt to obtain records from any alternative source available. If the records are still not available, obtain written confirmation of that fact. If after the above steps have been taken and VA concludes that it is reasonably certain that further efforts to obtain the records would be futile, VA will provide the Veteran with notice of that fact as required under 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) and allow an appropriate period of time for the Veteran to respond. Associate all documents obtained with the claims file. 2. The RO should provide the Veteran with a VA examination for his respiratory disorder. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any respiratory disorder to include asthma found on examination is at least as likely as not (i.e., a fifty percent or greater probability) related to the Veteran's active military service. The examiner should provide a complete rationale for all conclusions reached. Please send the claims folder to the examiner for review in conjunction with the examination. 3. Upon completion of the foregoing and any other development deemed necessary, the RO should readjudicate the Veteran's claim of entitlement to service connection for upper and lower respiratory disorder and the claims to reopen entitlement to service connection for residuals of a right leg crush injury and a skin disorder, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, the RO should provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).