Citation Nr: 1307964 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-27 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for bronchial asthma. 2. Entitlement to an increased rating in excess of 30 percent for bilateral ethmoidal and frontal sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active military service from March 1957 to February 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran is currently rated at 30 percent for both bronchial asthma and bilateral ethmoidal frontal sinusitis. He contend his current ratings do not accurately reflect his current symptomatology. The Board recognizes that the Veteran last underwent VA examinations for his sinus and respiratory system in August 2008 and September 2008, respectively; over four years ago. Therefore, the Veteran should be afforded a new VA examination to determine the current severity of his bronchial asthma and bilateral ethmoidal and frontal sinusitis. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). Furthermore, the Veteran stated in his March 2009 Notice of Disagreement that he was receiving treatment at the VA in Mayaguez, Puerto Rico. Thus, on remand, the RO must secure any outstanding records and associated them with the claims files. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment, to include records at the VA medical facility in Mayaguez, Puerto Rico. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. After any outstanding records have been obtained and associated with the claims file, schedule the Veteran for an examination by an appropriate medical professional to evaluate the current severity of his bronchial asthma. The examiner's findings should specifically include FEV-1 predicted or FEV-1/FVC measurements. The examiner should also ascertain whether the Veteran's disability warrants or is indicated by: (1) a monthly number of physician visits necessary for required care of exacerbations, (2) a number of yearly courses of systemic (oral or parenteral) corticosteroids, (3) a number of attacks of respiratory failure per week, (4) daily use of high dose systemic (oral or parenteral) corticosteroids, and (5) daily use of immune-suppressive medications. The examiner should quantify, if possible, any number ascertained in assessing or determining the frequency of the symptoms of the disability. A clear rationale for all opinions should be provided, along with a discussion of the facts and medical principles. Copies of all pertinent records in the Veteran's claims file, or in the alternative the claims file, must be made available to the examiner for review in connection with the examination. All appropriate testing must be conducted and these results must be included in the examination report. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. 3. After any outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the current severity and all manifestations of his ethmoidal and frontal sinusitis. The examiner should be asked to delineate all symptomatology associated with the Veteran's sinusitis. The examiner should also provide a history of the Veteran's sinusitis symptomatology, to include (1) any radical surgery with chronic osteomylitis or (2) near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, purulent discharge, or crusting, after repeated surgeries. All appropriate testing must be conducted and these results must be included in the examination report. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). _________________________________________________ WAYNE M. BRAEUER 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).