Citation Nr: 1315133 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-37 667 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for a claimed lung disorder and lung surgery residuals. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2009 by the RO. In December 2011, the Veteran provided testimony from the RO via a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. On the day of his hearing, the Veteran submitted additional private medical evidence and a lay statement along with waiver of initial consideration by the RO. The Board accepts this evidence for inclusion in the record and consideration by the Board at this time. See 38 C.F.R. §§ 20.800, 20.1304. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for the residuals of chemical exposure at Redstone Arsenal has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran asserts that he currently suffers from a lung disorder as the residual of an in-service surgery. During his December 2011 hearing, the Veteran testified about being stationed in Stuttgart, Germany where he collapsed in January 1971. He reported being transported to the hospital where lung surgery was performed. He added that the surgery incision was in the region of his left armpit. The Veteran reported remaining in intensive care for approximately 13 days and never returned to duty and in the hospital until June 1971. He reports currently on being oxygen full-time. In support of his contention, the Veteran submitted a clipping of an undated newspaper article indicating he underwent lung surgery in Stuttgart, Germany. The record contains an October 2009 statement from a physical therapy technician at the 5th General Hospital in Stuttgart, Germany who indicated that he gave the Veteran physical therapy to help him recover from surgery. A December 2011 statement from the Veteran's cousin indicated that he was hospitalized for a lung surgery in 1971 while stationed in Germany. Significantly, the Veteran's service treatment records are unavailable for review. In a November 2008 RO memorandum including a formal finding of unavailability of service treatment records, the RO indicated that the NPRC (National Personnel Records Center) determined that the Veteran's service treatment records were unavailable for review. The Court has noted that when "VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources." Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). The Board notes that, where the service treatment records were destroyed, the Veteran is competent to report about factual matters about which he had firsthand knowledge, including reporting to sick call, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran asserts that he had in-service lung surgery. Although the RO indicated the Veteran's service treatment records are unavailable, the RO has not obtained his service personnel records or records of in-service hospitalization. As the service personnel records may be relevant to his claim, the RO/AMC must seek to obtain the Veteran's complete official military personnel file. See 38 U.S.C.A. § 5103A(a)-(c). The Veteran reports that he continued to have problems with his lung since service. He receives treatment for chronic obstructive pulmonary disease. A July 2010 private treatment record indicates the Veteran has a chronic lung condition with emphysematous changes. Because there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim," a VA examination and opinion as to whether the Veteran has current residuals of an in-service lung surgery is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). The requirement under VCAA for warranting a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Finally, any relevant records of VA treatment should be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that relevant VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Accordingly, the case is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take all indicated action to contact the National Personnel Records Center (NPRC) and/or any other possible repository, and attempt to obtain records relating to the Veteran's claimed in-service hospitalization for a lung surgery in Stuttgart, Germany during January 1971 to June 1971. An attempt should also be made to obtain the Veteran's service personnel records. If no records are available, that should be noted in the Veteran's VA claims folder. 2. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for his claimed lung disorder. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. 3. After associating all outstanding records with the claims folder, the RO should have the Veteran for an appropriate VA examination to determine the nature and likely etiology of the claimed lung condition identified as being the residual of in-service surgery. The claims folder should be made available to and reviewed by the examiner. The examiner should conduct all indicated tests and studies. All findings and conclusions should be set forth in a legible report. After examining the Veteran and reviewing the entire record, the VA examiner should offer an opinion as to whether the Veteran has a current lung disability including any residuals of surgery that at least as likely as not are due an event or incident of his period of active service. 4. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).