Citation Nr: 1306745 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 06-08 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to January 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which in pertinent part, denied service connection for asthma. In April 2008, the Veteran testified during a personal hearing at the RO. A transcript of that hearing is of record. In April 2010, the Board remanded the case for further development by the originating agency. The development was completed and the case was returned to the Board. In September 2011, the Board issued a decision denying the issue of entitlement to service connection for asthma. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in an August 2012 Order, the Court vacated this portion of the September 2011 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). 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 In the Joint Motion granted by the Court, the parties agreed that the Board erred by failing to properly address whether the Veteran is entitled to a VA examination, in accordance with 38 U.S.C. § 7104(d)(1). Specifically, it was agreed that the Board must reassess whether there is adequate evidence of in-service incurrence of the disability, and sufficient evidence of a possible nexus, to require a VA examination. The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the VCAA, 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) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). 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. 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, at 83. The Veteran contends that his currently demonstrated asthma is related to his active military service. Specifically, he has reported that he began having "breathing problems" in service that he treated with an over the counter inhaler, and that he didn't report his symptoms because he did not want t be labeled as an unfit soldier. See April 2008 Decision Review Officer (DRO) hearing transcript. He also reported to his primary care physician in January 2004 that he had previously had respiratory problems. Service treatment records are negative for complaints or treatment for asthma, or other respiratory problems, and no respiratory disorder, including asthma, was diagnosed at the time of his discharge examination in November 1978. The post-service medical evidence of record, including VA and private treatment records, shows that the Veteran has been treated for asthma, since February 2001. However, they do not show that the disability has been linked to the Veteran's active military service. The Veteran has reported respiratory problems in service and a continuity of symptoms since. The evidence also shows that the Veteran has a current diagnosis of asthma. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence 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, at 83. Therefore, as a result of the above findings and the determination of the Joint Motion, the Board finds that an examination and opinion are needed to determine whether the Veteran's currently diagnosed asthma is related to his active military service. 38 U.S.C.A. § 5103A(d) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the etiology of his currently diagnosed asthma. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's asthma had its onset in service. In this regard the Veteran has reported symptoms of asthma beginning in service for which he treated with an over the counter inhaler. The examiner should review the claims folder and provide a rationale for all opinions and conclusions expressed. The examiner should consider the Veteran's reports of his history and symptoms. Any and all special studies or tests deemed necessary must be conducted. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner decides to reject the Veteran's reports, the examiner should provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 2. After ensuring that the above development is complete and the examination report is adequate, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, a supplemental statement of the case should be issued, the Veteran and his representative must be provided an opportunity to respond, and the case should thereafter be returned to the Board, if otherwise 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). _________________________________________________ Michael J. Skaltsounis 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) (2012).