Citation Nr: 1304736 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 08-29 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from February 1980 to May 1984, from October 2001 to June 2002, from November 2002 to February 2003, from April to October 2005, and from October 2010 to January 2011. He also had active duty for training from January to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Newark, New Jersey. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in January 2011. A transcript of the hearing is of record. This matter was remanded for further development in August 2011. Based upon information received as part of the last remand, including evidence of complaints of breathing problems in service, additional development, in the form of a VA examination, is warranted. 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 notes that the Veteran has the requisite service in order to have his claim addressed an undiagnosed illness. In a September 2005 Post-Deployment Health Assessment, he reported having been exposed to DEET, pesticide treated uniforms, environmental pesticides, smoke from burning trash, tent heater smoke, JP8 or other fuels, solvents, paints, industrial pollution, and sand/dust, while in Iraq. He also indicated that he had had difficulty breathing during his deployment at that time. He has also reported that he has had breathing problems since his Gulf War service. 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). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Veteran's reports of a continuity of symptomatology and in-service complaints of breathing difficulties satisfies the requirement that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. at 83. He has not been afforded a VA respiratory examination throughout the course of the appeal. Based upon the above, the Veteran should be afforded an examination, with the examiner rendering an opinion as to the nature and etiology of any current respiratory disorder and its relationship, if any, to his period of service. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the East Orange Medical Center for the period from October 2011 to the present. Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 2. Schedule the Veteran for an examination to determine the nature and etiology of any respiratory problems, to include any undiagnosed illness resulting from Gulf War Service. The claims folder and a copy of this remand must be made available to the examiner and the examiner should note such review in the report. All necessary tests should be performed. The examiner is asked to offer a medical opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran has objective indications of the claimed symptoms and, if so, whether the symptoms are attributable to a "known" clinical diagnosis. The examiner is also asked to offer a medical opinion whether the Veteran's symptoms/identified disabilities are attributable to his service, including as a result of his being in the Persian Gulf. Complete detailed rationale is requested for each opinion that is rendered. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 3. Thereafter, ensure the required actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any other development deemed appropriate, readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. 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. 2012). _________________________________________________ L. HOWELL 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).