Citation Nr: 1304835 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-35 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a chronic respiratory disorder to include bronchitis, asthma and/or costochondritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from May 2003 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in part, denied service connection for bronchitis, hearing loss and tinnitus. In regards to the claimed respiratory disorder, although this was originally claimed by the Veteran as bronchitis, the evidence shows other possible conditions to include recurrent URI, costochondritis and/or asthma, the Board has classified this issue to encompass all these potential disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (expanding the scope of a service connection for a mental health disability claim encompasses all psychiatric disability shown/alleged). As the AOJ granted service connection for residuals of left scaphoid fracture, lumbar spine strain and hallux valgus bilateral toes, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The Board notes that the Veteran in an April 2010 statement expressed his desire to have his appointed representative continue to prosecute his claim. This statement appears to request a hearing before the Board, but stated that he requested the representative to "appear in my stead," thereby suggesting that he was not interested in personally presenting testimony at a hearing. As the VA generally does not provide for representatives to present hearing testimony on an appellant's behalf in the absence of the appellant, this request is treated as a request for his representative to submit written arguments via informal hearing presentation or brief. See 38 C.F.R. § 20.700 (b) (a hearing will not normally be scheduled solely for the purpose of receiving argument by a representative. Such argument should be submitted in the form of a written brief). The representative submitted a brief on the Veteran's behalf in January 2013, which appears to satisfy this request. The Veteran is advised that absent a request by the Veteran to personally appear at a hearing before the Board, no further action on this apparent informal hearing request will be taken. 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 contends that service connection is warranted for hearing loss, tinnitus and a respiratory disorder. Service treatment records are noted to show treatment for problems with respiratory infections and chest pain, and the in-service audiology examinations confirm that he was routinely exposed to noise. Specifically, the Veteran's representative in a May 2012 written statement has advised that the Veteran has treated at the VAOPC in Winston-Salem, North Carolina and the VAMC in Temple, Texas for pertinent disability. The Veteran alleged that he has had continuous treatment at these VA facilities, and the representative requested that these records be obtained. 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). Given that such records could prove pertinent to all claimed issues, they must be obtained. In regards to the claimed respiratory disorder, while the Veteran claimed it as bronchitis, he later submitted evidence suggesting that the claimed condition was asthma. The service treatment records are noted to show treatment for episodes of upper respiratory infections, as well as episodes of chest pain associated with deep breaths, diagnosed as costochondritis. His separation examination's report of medical history dated in May 2005 revealed the Veteran to answer "yes" to chronic cough, bronchitis, and wheezing, although the examination itself was negative for abnormal findings of the lung or chest. He has alleged possible continuity of symptoms in his September 2009 VA form 9, describing pain in his internal chest/lungs that caused pain while conducting exercise. Given the episodes of respiratory infections and costochondritis in service, and possible post service continuity of symptoms, the Board finds that a VA examination is indicated to ascertain the nature and etiology of the claimed respiratory disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from the Winston-Salem, North Carolina and the VAMC in Temple, Texas pertaining to hearing loss, tinnitus (or other ear dysfunction) and/or a respiratory disorder from immediately after service to the present. Continue to request the VA records, either until the records are obtained or it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Thereafter, the RO should schedule the Veteran for a VA lung disorders examination to determine the nature and extent of any current respiratory disabilities, and to obtain a medical opinion as to whether any such disorders are possibly related to service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. The examination report should include a detailed account of all respiratory system pathology found to be present. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should clearly identify all respiratory disorders found. For each respiratory disability found, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the current disability arose during service or is otherwise related to any incident of service. The service treatment records that address infections of the respiratory system and chest pain diagnosed as costochondritis must be considered as well as the post service lay and medical evidence pertinent to this matter. A complete rationale for all opinions expressed should be provided. 3. Thereafter, the AOJ should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received and all applicable regulations. An appropriate period of time should be allowed for response. 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). _________________________________________________ THOMAS J. DANNAHER 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).