Citation Nr: 1127162 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 08-30 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1967. This matter is on appeal from a June 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is of record. 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). In this case, the Board determines that further development is necessary before the merits of the claims may be addressed. The Veteran asserts that he has a respiratory disorder (bronchitis and chronic obstructive pulmonary disease) due to his service as welder while on active duty. He presented several treatise articles on the deleterious effects of welding on the respiratory system. There is some evidence showing complaints of respiratory problems (asthma) as early as 1973. Parenthetically, the record shows that the Veteran had a post-service career as a welder. Thus, given his in-service and post-service history as welder along with his present respiratory problems, a VA examination is necessary in order to determine whether any current respiratory disorder was incurred or aggravated by active duty. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the record indicates that there are outstanding records that must be required prior to adjudicating the claim. First, at his hearing before the Board in March 2011, the Veteran stated that he was treated in the late 1980's from the VA Medical Center in Portland, Oregon. However, it does not appear that these records were obtained. It should be noted that these VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, VA must make an effort to obtain these records prior to adjudication. See also Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Next, at the same hearing, the Veteran stated that he received private treatment from the Kaiser Permanente Hospital beginning in approximately 1968. While it appears that he previously submitted an authorization to obtain these records (specifically in February 2002), Kaiser Permanente responded in September 2002 that it did not accept authorizations more than 120 days old and required a new authorization. As no further attempt was made at that time, the RO should again attempt to acquire these records with a timely authorization from the Veteran. Finally, the evidence indicates that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). The 1996 decision from the SSA is of record. However, the underlying evidence that the SSA considered in making its decision were not obtained at that time. In that regard, while the RO sent a request for these records to the SSA in September 2002, it is not clear that the SSA ever responded to this request. In such cases, the Court of Appeals for Veterans Claims has held that, where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). As such, these records must be acquired as well. (CONTINUED NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. Obtain any treatment records that may be available from the VA Medical Center in Portland, Oregon, for the period from 1980 to 1996, and since September 2002. 2. After acquiring the Veteran's authorization, obtain any private treatment records that may be available from the Kaiser Permanente Hospital in Portland, Oregon, since 1969. This request must be sent within 120 days of the Veteran's authorization. If the Veteran has received any other private treatment related to his respiratory disorder, the RO should also acquire the records associated with this treatment after acquiring the Veteran's authorization. 3. Obtain the Veteran's SSA records, including the medical evidence used to determine eligibility for disability benefits. If no SSA records are available, it should be so noted in the claims file. 4. After the above development has been completed and all outstanding records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, extent, onset and etiology of any respiratory disorder found to be present. The claims folder, to include a copy of this remand, should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. With regard to any respiratory disorder identified, the examiner should express an opinion as to whether it is at least as likely as not (i.e., a 50% possibility or greater) that this disorder had its onset in service or is otherwise etiologically related to service. The Veteran's in-service and post-service exposure to fumes, chemicals, and burning material from welding must be addressed and discussed. Consideration should be given to the treatise articles provided by the Veteran along with his personal statements/history. Any opinion provided by the examiner must be accompanied by a thorough reasons and bases for the proffered opinion. If the examiner is unable to provide an opinion without resorting to speculation, an adequate reasons and bases should be provided as to why such an opinion cannot be given. 5. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a SSOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. 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. 2010). _________________________________________________ MICHAEL A. HERMAN 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) (2010).