Citation Nr: 1031789 Decision Date: 08/24/10 Archive Date: 09/01/10 DOCKET NO. 05-21 597A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 30 percent for the service-connected bronchial asthma. ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for bronchial asthma and assigned a 10 percent disability rating, effective from July 24, 2003. In November 2006, the RO assigned a 30 percent rating for the Veteran's service-connected bronchial asthma, effective from July 24, 2003. The Veteran has continued his appeal for a higher rating for his service-connected bronchial asthma. In June 2007, the Veteran failed to appear for a scheduled travel Board hearing. In December 2007, the Board remanded the issue on appeal to the Appeals Management Center (AMC) in Washington, D.C., in order to provide the Veteran notice of the Veterans Claims Assistance Act of 2000 (VCAA). In September 2009, the Board remanded the issue on appeal to the AMC for further evidentiary development. Because proper VCAA notice has been provided to the Veteran, and because a current VA examination was conducted in December 2009, the Board is satisfied that there has been substantial compliance with the remand directives set out in 2007 and in 2009. Stegall v. West, 11 Vet. App. 268 (1998). In December 2007 and in September 2009, the Board referred the issue of entitlement to service connection for psoriasis to the Agency of Original Jurisdiction (AOJ) for initial adjudication. There is no indication in the record as to whether the AOJ has dealt with this claim. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. Although further delay of this matter is regrettable, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Board finds that at this point, an additional attempt at evidentiary development must be accomplished prior to the Board rendering a decision. With regard to VA treatment records, the Board finds that although there are VA treatment records in the claims folder dated through April 2010, it appears that some VA records may be missing. First, the Board notes that the record reflects that the Veteran underwent VA pulmonary function testing (PFT) on at least four occasions. While the results of the September 2006 and November 2009 PFTs have been obtained, the numerical results of the PFTs in November 2004 and March 2008 have not been incorporated into the record. With specific regard to the March 2008 PFT, a VA physician indicated that the Veteran's FEV1 and FEV1/FVC were decreased, and that he had a severe obstructive defect. Thus, these PFT results should be obtained. Second, in February 2010, the VA examiner from December 2009 conducted a "respiratory analysis to assess the current severity of the [Veteran's] service-connected bronchial asthma". Therein, the examiner provided a response to the questioning of the frequency of visits for bronchial asthma or recurrent exacerbations of asthma, noting that the Veteran had just one prednisone spurt on September 9, 2009, of 20mg per day for five days. A review of VA treatment records in the claims folder, however, shows that the Veteran was treated with a five day burst of Prednisone 40 mg in September 2004 and 60 mg in August 2008. There is, however, no indication of any treatment with Prednisone on September 9, 2009; rather on that date the Veteran was seen for other complaints, and his asthma was noted to have improved. Also, in February 2010, the VA examiner noted, after reviewing VA treatment records, that the Veteran had a "no visit gap" from 2008 to 2009. However, review of the claims folder shows that the Veteran was seen on at least three occasions in 2008, specifically related to treatment for his asthma. Thus, on remand, complete and current VA treatment records should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As these records could be relevant to the Veteran's claim and are considered in the possession of VA adjudicators, a remand is necessary to ensure that the Veteran's complete VA treatment records have been obtained. 38 U.S.C.A. § 5103A(b),(c). Accordingly, the case is REMANDED for the following action: 1. Ensure that complete and current VA treatment records have been obtained for the Veteran, from July 2003 through the present, for any treatment related to his service- connected bronchial asthma. Specifically, obtain the numerical PFT results from November 2004 and March 2008. A negative reply should be requested. Any additional records obtained should be associated with the Veteran's claims folder. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ BARBARA B. COPELAND 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).