Citation Nr: 1018151 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 06-01 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for loss of the sense of smell. 2. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The RO, in pertinent part, denied a claim of service connection for asthma and determined that new and material evidence had not been submitted to reopen the claim of service connection for loss of the sense of smell. The RO additionally awarded an increased 10 percent disabling rating for residuals of a shell fragment wound of the left thumb and index finger and continued a noncompensable rating for shrapnel wound scars of the left index finger and left thumb. The Veteran presented testimony before the Board in June 2006. The transcript has been associated with the claims folder. In August 2007, the Board denied the increased rating claims for shrapnel wound scars and residuals of shell fragment wounds of the left thumb and index finger. The claims are no longer in appellate status. The claims pertaining to asthma and loss of the sense of smell were remanded to the RO for further development and adjudication. Because the Board's remand directives have not been completed, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. Stegall v. West, 11 Vet. App. 268 (1998). 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). REMAND In its August 2007 remand, the RO/AMC was instructed to remand the claim for loss of the sense of smell for VA to examine the bases of the prior denial in May 1999 and advise the Veteran as to what evidence and information was necessary to reopen and to substantiate his claim in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board specifically noted that although the Veteran received a letter of notification dated in May 2005, the letter failed to fully comply with the holding in Kent, and did not inform the Veteran of the bases for the previous denial of his claim in May 1999. In attempt to comply with the Board's remand instructions, the RO/AMC sent the Veteran an additional notification letter in October 2007; however, this letter also failed to comply with the holding in Kent. The RO notified the Veteran that his claim for loss of the sense of smell was denied in May 1999: ". . . because VA outpatient treatment reports note that [he took] nasal inhalers and noted a 62 year history of pipe smoking, but [did] not show any treatment for loss of sense of smell." In so noting, the RO/AMC did not advise the Veteran of the reason for the May 1999 reasons for the denial of the claim, but instead advised the Veteran of the August 2005 decision currently on appeal, which found that the Veteran had not submitted new and material evidence to reopen the claim. Stated alternatively, the RO/AMC did not inform the Veteran that his claim was denied in May 1999 as there was no record of loss of sense of smell showing a chronic disability subject to service connection. The RO additionally found in May 1999 that neither the secondary service treatment records nor the evidence of record showed any current loss of sense of smell. Upon Remand, the RO is instructed to provide the corrective notice as delineated above. A copy of the letter is to be placed in the claims file. The RO was additionally instructed in August 2007 to assist the Veteran and make reasonable efforts to obtain relevant records that the Veteran adequately identified and authorized VA to obtain. See 38 U.S.C.A § 5103A. In an October 2007 VA Form 21-4138, Statement in Support of Claim, the Veteran informed the RO for the first time that he sought treatment in the 1940's and 1950's from the VA Medical Center (VAMC) in Newington, Connecticut. The RO/AMC made repeated efforts (February 2008, June 2009, and August 2009) to obtain records from the VAMC in Newington; however, no response was received to the requests for records, to include a negative response. The RO/AMC made a fourth attempt to the West Haven VAMC in January 2010, again with no response. Based on its finding that the VA Medical Centers in Newington and West Haven made no response to the RO/AMC's requests, the RO/AMC made a formal finding of the unavailability of the treatment records, and found that all efforts had been exhausted and further attempts were futile. The fact that the VA Medical Centers in Newington and West Haven made no response to the RO/AMC's repeated requests for records does not support a finding that the records are "unavailable." Pursuant to 38 C.F.R. § 3.159(c)(2), VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. VA will end its efforts to obtain these records only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal Department or Agency advises VA that the request records do not exist or the custodian does not have them. The VAMC in Newington, Connecticut, did not advise the RO that the records did not exist or that they did not have them. The VAMC in West Haven, Connecticut, was only sent one request with no follow-ups. Upon Remand, a negative response from both facilities must be associated with the claims folder prior to finding that any further efforts would be futile. Finally, the Board notes the Veteran indicated in November 2007 that he was "currently" being treated by Dr. A at the VA clinic in Windham. A review of the claims file shows the last VA records are dated in July 2005. Ongoing VA medical records pertinent to the issues should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case must again be remanded to comply with the law as to development of the record. The RO/AMC is directed to the specific development instructions delineated in the numbered paragraphs below. (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/AMC will advise the Veteran of what evidence would substantiate his petition to reopen his claim of service connection for loss of the sense of smell, first denied in a May 1999 rating decision. Apart from other requirements applicable under the Veterans Claims Assistance Act (VCAA), the RO/AMC will comply with the Kent ruling, and advise the Veteran of the evidence and information necessary to reopen and substantiate the claim. The RO/AMC will also comply with any directives of the Veterans Benefits Administration and advise the claimant of the elements required to establish service connection found insufficient in the previous denial. Note: the Veteran's claim was denied in May 1999 as there was no record of loss of sense of smell showing a chronic disability subject to service connection. The RO additionally found in May 1999 that neither the secondary service treatment records nor the evidence of record showed any current loss of sense of smell. 2. The RO/AMC will contact the Veteran and request that he identify all healthcare providers who have treated him for asthma and loss of the sense of smell since discharge from service. The RO/AMC will request that the Veteran complete and return the appropriate release forms so that VA can obtain any identified evidence relating to such treatment. The RO/AMC will attempt to obtain copies of all pertinent records outstanding. All identified private treatment records should be requested directly from the healthcare providers. Specifically, the RO/AMC must seek to obtain treatment records of the Veteran from the following: (a) the VAMC in Newington, Connecticut, dated from 1946 to the present; (b) the VAMC in West Haven, Connecticut, dated from 1946 to the present; (c) any ongoing VA treatment records from the VAMC in Windham, Connecticut, dated from July 2005 to the present. The RO/AMC must also advise the Veteran that he may submit the information and releases necessary to obtain treatment records from "Dr. T.H." All information that is not duplicative of evidence already received should be associated with the claims file. All requests for records and their responses should be clearly delineated in the claims folder. A negative response must be obtained from the VAMCs in West Haven and Newington, if the records are not available. 3. The RO/AMC must notify the Veteran as to the existence, or lack thereof, of these records. The notice must contain (1) the identity of the records VA was unable to obtain; (2) an explanation of the efforts VA made to obtain the records; (3) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (4) a notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC must readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 5. If any benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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). These claims 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). _________________________________________________ VITO A. CLEMENTI 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).