Citation Nr: 1314969 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-14 435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence to reopen a claim of entitlement to service connection for asthma has been received. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his friend ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to February 1974. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2008 rating decision, in which the RO declined to reopen the Veteran's previously denied claim of entitlement to service connection for asthma. In August 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2009, and the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2009. In his April 2009 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). In a January 2013 statement, the Veteran's representative relayed that the Veteran preferred to have a Board video-conference hearing instead. The requested hearing was held in March 2013 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claims file. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. REMAND The Veteran seeks to reopen his previously denied claim of entitlement to service connection for asthma, which he asserts pre-existed service and was aggravated therein. His initial claim was denied by the RO in August 1974. The Veteran was notified of this decision, but did not initiate an appeal Subsequently, he made several unsuccessful attempts to reopen his claim; the RO most recently denied the claim in November 2005. In an August 2009 statement, during the pendency of this appeal, the Veteran indicated that he believed some of his medical records, relevant to his medical discharge from service, were missing from his claims file and that they may be located with his 201 personnel file. (Service treatment records in the claims file include the report of the Veteran's Medical Board Examination, showing he was discharged from service due to pre-existing asthma; service personnel records are not in the claims file.) The RO did not attempt to obtain the Veteran's personnel records, but rather informed the Veteran that he should contact the National Personnel Records Center (NPRC) to obtain them. It is unknown whether the Veteran ever attempted to obtain his personnel records from the NPRC. However, as service records are potentially pertinent Federal records, VA has a duty to attempt to obtain these records. See 38 U.S.C.A. § 5103A (West 2002). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Moreover, receipt of any outstanding, relevant, service department records would implicate 38 C.F.R. § 3.156(c), such that the claim would be reconsidered-an outcome ostensibly more favorable to the Veteran than a reopening of his claim. While this matter is on remand, to ensure that all due process requirements are met, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, in addition to seeking the aforementioned service personnel records. In this regard, the record reflects that the Veteran has, in the past, received both VA and private treatment for his asthma. Accordingly, the RO should undertake appropriate action to obtain any outstanding VA treatment records. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication the claim should include consideration of all additional evidence added to the claims file since the last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Contact the National Personnel Records Center, and/or any other appropriate facility (ies), to obtain the Veteran's service personnel records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain any outstanding, pertinent VA records of evaluation and/or treatment of the Veteran since his discharge from service. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).