Citation Nr: 1032891 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 08-03 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Veteran represented by: African American PTSD Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to June 1964, and from June 1964 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim. In June 2010, the Veteran presented sworn testimony during a Travel Board hearing in Waco, Texas, which was chaired by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. Additionally, evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2009). Furthermore, on remand, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review this newly submitted evidence before readjudicating the claim. The Board additionally notes that an August 2008 rating decision denied the Veteran entitlement to a total disability based upon individual unemployability due to service-connected disabilities (TDIU). To the Board's knowledge, a timely substantive appeal [VA Form 9 or similar] was not filed. That matter, therefore, is not in appellate status and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [noting that pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. 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. REMAND For reasons expressed immediately below, the Board finds that the issue of entitlement to service connection for asthma must be remanded for additional evidentiary development. Reasons for remand Evidentiary development During the above-referenced Travel Board hearing in June 2010, the Veteran discussed his asthma and claimed that his symptoms had persisted since service. He also indicated that he is currently receiving treatment at a VA outpatient clinic for his asthma. See the June 2010 Board hearing transcript, pgs. 10-11. The Board notes that the Veteran's claims folder is negative for any VA treatment records after September 2009. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) [holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"]. In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. VA examination In order to establish service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations provide, in pertinent part, that a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Id. To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner, supra. The Veteran is claiming entitlement to service connection for asthma, which he contends is due to his military service. See, e.g., the June 2010 Board hearing transcript, page 3. He further contends that he did not have asthma when he entered service in June 1961. Id. Historically, the Veteran's June 1961 service entrance examination documented the Veteran's complaints of whooping cough; however, he was not diagnosed with any respiratory disorder at that time. Additionally, the Veteran sought treatment in November 1963 for a mild cold with accompanying headache and cough as well as shortness of breath. An examination of his lungs revealed scattered bronchi and wheezes with inspiration and expiration with otherwise unremarkable findings. A subsequent chest X-ray taken six days later showed essentially normal findings. The Veteran was diagnosed with acute bronchitis as well as broncho pneumonia in the right middle lobe and right lower lobe, organism unknown. He was prescribed medication and was hospitalized for ten days. Finally, the Board notes that during a June 1964 examination, the Veteran complained of chronic colds and cough, shortness of breath, and hay fever with mild dyspnea. He reported that he had hay fever since childhood which was characterized by coryza, rhinorrea, and conjunctivitis. In February 2008, the Veteran was afforded a VA examination for his asthma. After a review of the Veteran's claims folder and examination of the Veteran, the VA examiner diagnosed the Veteran with bronchial asthma. He concluded that it is less likely than not that the Veteran's current asthma is an expression of the bronchitis and pneumonia that are documented in his service treatment records occurring in 1963. Crucially, however, the VA examiner failed to comment on the Veteran's June 1961 entrance examination which documented the Veteran's complaints of whooping cough, as well as the June 1964 examination when the Veteran reported that he had hay fever since childhood. As such, he did not identify with specificity any particular asthma disability that predated the Veteran's active service. There is no opinion of record that addresses whether there is clear and unmistakable evidence that the Veteran's asthma preexisted military service and, if it did, whether there is clear and unmistakable evidence that the asthma was not aggravated by service. See 38 U.S.C.A. §§ 1111, 1153 (West 2002), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2009); Wagner, supra; VAOPGCPREC 3-2003. Accordingly, a remand for such opinion is required. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Specifically, the RO should request any outstanding VA treatment records since September 2009 pertaining to the Veteran's asthma. All attempts to secure this evidence must be documented in the claims folder by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his asthma. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a) Provide an opinion as to whether there is clear and unmistakable evidence that the Veteran had asthma prior to his entry onto active duty; b) If the VA examiner determines that the Veteran's current asthma pre- existed his military service, provide an opinion as to whether there is clear and unmistakable evidence that it was NOT aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disability. c) If the VA examiner determines that the Veteran's asthma did not pre- exist his military service, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current asthma is etiologically related to his military service. The examiner should indicate in his/her report that the claims folder was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. In providing the requested opinion, the examiner should be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). _________________________________________________ LANA K. JENG Acting 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).