Citation Nr: 1312151 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-18 218A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served with the Army Reserves from November 1981 through May 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the claim sought. A Board hearing was held before the undersigned in September 2011 by videoconference, and a transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for asthma. Before the Board can adjudicate this claim on the merits, additional development is required. I. Reserve Service Treatment and Personnel Records The Veteran's claims file indicates that she served in the Army Reserves from November 1981 through May 2008, when she medically retired. The claims file contains the Veteran's full service treatment records through 1999. Since that time, the Veteran has only provided sporadic treatment records. It appears as if there are outstanding treatment and personnel records in the Veteran's possession that would be helpful in adjudication of her case. Here, the Veteran never had any period of active duty service. Relevant sections of the VA Adjudication Procedure Manual and Manual Rewrite (M21-MR) indicate that the Army scans and stores electronically soldier's personnel folders in its Personnel Electronic Records Management System (PERMS), and ROs have access to these records through the PIES/DPRIS interface. See Adjudication Manual, M21-1 Manual Rewrite, Part III.iii.2.B.13.d (Sept. 29, 2006). It also notes that the Army sends service treatment records belonging to reservists with prior active duty service to VA's Record Management Center (RMC). Id. Service treatment records belonging to an individual in the National Guard or Reserves who has never been on active duty, however, are never sent to the RMC. Id. Thus, while the AOJ may have access to the Veteran's personnel records, it appears as if VA will be unable to obtain her outstanding service treatment records. On remand, the AOJ should request that the Veteran submit copies of all service treatment records and personnel records in her possession to VA, and the AOJ should attempt to obtain the Veteran's Reserve personnel records in PERMS through the PIES/DPRIS interface. The Board points out that in order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Swann v. Brown, 5 Vet. App. 229, 233 (1993). As such, the Board reminds the Veteran that providing any service treatment records or personnel records in her possession will be helpful, if she wishes to establish her claim for service connection. II. VA Examination The Veteran was first diagnosed with "exercise-induced bronchospasm" on September 9, 1994. At this time, the evidence does not indicate that the Veteran was serving on active duty for training (ACDUTRA) with the Reserves. On October 1, 1994, while performing training, the Veteran complained of shortness of breath and chest tightness during running. The Veteran was put on a temporary profile, expiring December 1, 1994. A permanent profile was issued on November 5, 1994, allowing the Veteran to walk, instead of run, during her physical training test. Since that time, several temporary and permanent profiles were issued for the Veteran, due to either her asthma or her back. See, e.g., October 1998 note in Report of Medical History noting the soldier was on a permanent profile that allowed her to run instead of walk for the past two years, March 1999 temporary profile. The Veteran has a current diagnosis of bronchial asthma. During an April 2010 VA examination, she reported that she used an Advair inhaler on a daily basis. The examiner determined that it was more likely than not that the Veteran's asthmatic condition was related to military service because the condition was diagnosed while she was in the Reserves. The examiner also noted that a review of service treatment records revealed no evidence or pre-existing asthma including her initial examination dating back to the year 1981. He found that the first mention of asthma was in September 9, 1994, in the letter referenced above. Unfortunately, the Board finds that this medical opinion is not sufficient to decide the issue on appeal because the examiner provided an opinion based on an incorrect legal standard. The applicable laws and regulations regarding Reserve and National Guard service permit service connection only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2012). A disability that arises while someone was a member of the Reserves, but outside an actual period of training, is not considered to have resulted from service, unless the disability was permanently aggravated by disease or injury during a period or periods of ACDUTRA or injury during a period or periods of INACDUTRA. Thus, the examiner's statement that it was more likely than not that the Veteran's asthmatic condition was related to military service because it was diagnosed while she was in the Reserves is problematic as it has no bearing on the actual legal issue of this claim. The Board further notes that the Veteran has achieved "veteran" status, as she is currently service connected for a back disability related to an injury that occurred during a period of ACDUTRA dated from November 1981 through July 1982. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). See also Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). For veterans who have achieved "veteran" status through a prior period of service and claim a disability incurred during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" prior to that period, and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Here, as noted above, the Veteran was originally diagnosed with "exercise-induced bronchospasm" on September 9, 1994. There is no indication that she was serving on a period of ACDUTRA at this time. On the previous Report of Medical History in May 1993, the Veteran denied asthma. Records indicate that the next period of training after her diagnosis occurred around October 1, 1994, when the Veteran was provided with a temporary profile due to her asthma. Prior to this period of ACDUTRA, the Veteran did not undergo an entrance examination. Thus, the presumption of soundness does not apply. Here, the Board also notes that where a claim is based on a period of ACDUTRA, the presumption of aggravation is not applicable, even if the claimant achieved "veteran" status during a prior period of service. Id. at 48. Thus, as the evidence reflects that the Veteran's diagnosis of asthma pre-existed her period of October 1, 1994 training, the only relevant question remaining is whether the Veteran's asthma was permanently aggravated beyond the normal course and scope of the disability by her continuous training with the National Guard. In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Here, for the aforementioned reason, the Board finds the VA opinion for the Veteran's asthma to be inadequate. While the Veteran has the burden to establish the elements of aggravation of her pre-existing asthma (namely, 1) there was an increase in disability as to a preexisting injury or disease, and 2) such an increase was beyond the natural progress of that injury or disease), VA also has a duty to provide the Veteran with an adequate examination once an examination has been provided. See 38 U.S.C.A. §§ 101(24), 1153; Barr, 21 Vet. App. at 311. Therefore, on remand, the Veteran should be afforded a VA evaluation to determine the nature and etiology of her asthma. Accordingly, this appeal is REMANDED for the following actions: 1. With any needed assistance from the Veteran, obtain personnel records relating to the Veteran's service with the Army Reserves, in accordance with M21-1 Manual Rewrite, Part III.iii.2.B.13.d, or any other appropriate source. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Request that the Veteran provide copies of her entire file of service treatment records, dated from 1999 through May 2008, including records from Moncrief Army Community Hospital in Fort Jackson, South Carolina. Also request that the Veteran identify private physicians with whom she obtained treatment during her Reserve service, and that she provide authorization-via VA Form 21-4142-to obtain relevant records from such providers, including, but not limited to, Springwood Lake Family Practice per 38 C.F.R. § 3.159(c)(1). If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completion of Steps 1 and 2, schedule the Veteran for an evaluation to determine the nature and etiology of her asthma. The claims file should be made available to and be reviewed by the examiner in conjunction with the evaluation. All required tests should be performed, if deemed necessary by the examiner. After a full evaluation, the examiner should provide an opinion on the following question: Is it at least as likely as not (i.e., is there a 50 percent chance or greater) that the Veteran's asthma was permanently aggravated beyond the normal course and scope of the disability by exercise performed approximately two weeks per year and one weekend per month from October 1, 1994 until May 2008? For purposes of this question, please consider that, on several occasions, the Veteran was issued profiles for her back and/or asthma that precluded running. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and her representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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). _________________________________________________ Paul Sorisio 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).