Citation Nr: 1312934 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 11-02 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a lung disability, to include asthma. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2003 to February 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied entitlement to service connection for the above claimed disabilities. The Board notes that the November 2009 rating decision also denied service connection for a left knee disability and allergies. The Veteran submitted a timely notice of disagreement, but did not submit a substantive appeal in response to the January 2011 statement of the case. The RO did not list either issue in a VA Form 8, certification of appeal, and took no other actions indicating that the issue was on appeal. Accordingly, the Board will not consider these issues further. 38 C.F.R. § 20.200 (2012) (an appeal consists of a timely filed notice of disagreement in writing and after a statement of the case is issued, a timely filed substantive appeal); cf. Ortiz v. Shinseki, 23 Vet. App. 353 (2010) (a substantive appeal is not a jurisdictional requirement and jurisdiction may vest where an RO has taken actions to indicate that an issue is on appeal). In June 2012, the Veteran failed to appear for a videoconferencing hearing before the Board. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). 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 February 2012, the Veteran submitted a medical bill from an urgent care center with the statement that the bill was for treatment of asthma. Records from this treatment have not been obtained and VA has a duty to obtain relevant records of private treatment. 38 U.S.C.A. § 5103A(b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994). These records are relevant to the appeal and efforts to obtain them should be conducted following the procedures under 38 C.F.R. § 3.159 (2012). Thus, a remand is necessary for this claim. The Board notes that the evidence of record does not establish a current diagnosis of asthma or another chronic lung condition. As noted above, the Veteran did not perfect her appeal for service connection for allergies, and thus, the issue is not before the Board. Private treatment records demonstrated post-service evidence of the use of inhalers back to April 2007, when the Veteran requested a refill for her inhaler. However, it was noted in an October 2007 and March 2008 private treatment record that such inhaled medication was prescribed to treat issues other than asthma, such as allergies, viral syndrome, pneumonia with cough, and allergic rhinitis. Nevertheless, the Veteran asserted in the February 2012 statement that she was being treated with inhalers for asthma. Therefore, the Board finds that a VA examination is necessary to determine whether the Veteran currently has asthma or another chronic lung disability and, if so, whether it is etiologically related to the in-service treatment for respiratory symptoms and asthma. The Veteran also contends that her current right knee disability was incurred during service. Indeed, she was diagnosed with patellofemoral pain syndrome of the right knee during service. However, the evidence does not demonstrate a right knee disability between the institution of this claim in February 2008 and a post-service right knee injury in April 2008. Therefore, the Board must obtain an opinion as to whether any currently diagnosed right knee disability is etiologically related to her in-service right knee treatment. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment, including at the urgent care center she identified. If the Veteran fails to complete necessary authorizations, tell her that she may obtain and submit the records herself. If any records cannot be obtained, inform the Veteran of this fact, tell her what efforts were made to obtain the records, and advise her of any additional development that will be undertaken. 2. Once the above development has been completed, provide the Veteran with a VA pulmonary examination with a qualified physician to determine whether the Veteran currently has asthma and whether any current disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is requested to list all current pulmonary disabilities, and should specifically state whether the Veteran has asthma. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current pulmonary disability had onset in service or is otherwise related to a disease or injury in service. The examiner should provide reasons for the opinions that take into account the Veteran's reports of her history, the reported in-service injuries, exposures, or events, and her current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. Also, provide the Veteran with a VA joints examination with a qualified physician to determine whether any current right knee disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current right knee disability had onset in service or is otherwise related to a disease or injury in service, as opposed to the post-service right knee injury in 2008. The examiner should provide reasons for the opinions that take into account the Veteran's reports of her history, the reported in-service injuries, exposures, or events, and her current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 4. Then, review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand. 5. Finally, after completion of all requested and necessary development, review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, furnish the Veteran and her representative with a supplemental statement of the case. Once they are afforded an opportunity to respond, return the case to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2002 & Supp. 2012). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).