Citation Nr: 1304160 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-18 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for allergies. 2. Entitlement to service connection for asthma, to include as secondary to allergies. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from October 1979 to February 1980. These claims come before the Board of Veterans' Appeals (Board) on appeal of November 2007 and January 2008 rating decisions of the Department of Veterans Affairs (VA) RO in Nashville, Tennessee, which denied entitlement to service connection for asthma and allergies. The Veteran requested a hearing at the central office in Washington, D.C. on his June 2009 VA Form 9 (substantive appeal). The hearing was to be held in February 2013; however, the Veteran submitted a statement in December 2012, indicating that he would be unable to attend the hearing. As such, his request is withdrawn. 38 C.F.R. § 20.704(e) (2012). 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 Veteran has contended that he has allergies and asthma that began during service, due to a change in environment. As an initial matter, the Board notes that the most recent VA medical records in the claims file are from January 2007 and there are no medical records contained in the Virtual VA electronic system. As it appears that the Veteran has been receiving ongoing treatment for his allergies and asthma from the VA, medical records since January 2007 should be obtained and added to the record. 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. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. VA medical records reflect that the Veteran was seen in July 1987 for nasal congestion. A December 1988 VA medical record reflects that the Veteran reported that he had upper respiratory infections for more than eight years. In May 1997, the Veteran indicated that he had wheezing in his chest, which had been present for a few years. The examiner noted to rule out asthma. In June 1998, the Veteran was diagnosed with asthma. Records reflect ongoing treatment for asthma and allergies since that time. As these records reflect evidence that the Veteran has reported upper respiratory infections since his time on active duty and ongoing symptoms since that time, the Board finds that an examination is warranted to determine whether he had a respiratory or nasal disorder, to include allergies, that is related to service. In addition, in a letter submitted in March 2008, the Veteran's private physician, B.D.H., M.D., noted that the Veteran had "allergy-triggered asthma" and perennial allergic rhinitis. As this letter shows that the Veteran's asthma may be caused or aggravated by his allergies, the examiner should be asked to comment on this as well. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment related to the Veteran's allergies and asthma from the VA since January 2007. 2. Schedule the Veteran for a VA examination to determine the etiology of his asthma and allergies. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether (a) it is at least as likely as not (50 percent probability or more) that the Veteran's allergies and asthma began during, were caused by, or are etiologically related to any incident of active duty, to include environmental changes while on active duty; (b) it is at least as likely as not (50 percent probability or more) that the Veteran's asthma was caused (in whole or in part) by his allergies; (c) it is at least as likely as not (50 percent probability or more) that the Veteran's asthma is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his allergies. If the Veteran's asthma was aggravated by his allergies, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, 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. 2012). _________________________________________________ J. A. Markey 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) (2012).