Citation Nr: 1318618 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 13-00 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable evaluation for the service-connected asthma. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which awarded service connection for asthma and assigned a noncompensable rating effective April 2009. The Veteran has raised claims of entitlement to service connection for diabetes, general arthritis, numbness and tingling of the left leg, high blood pressure, a sleep condition (including sleep apnea), breathing problems (including asbestos related lung disease), cholesterol, dysphagia, and a back condition. He further claims entitlement to a total disability evaluation based on individual unemployability (TDIU). These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran claims entitlement to a compensable rating for the service-connected asthma. Notably, he asserts that his asthma limits his ability to walk, causing him to feel like he needs to take a break. BVA Transcript at 6. He testified that he was unable to use an inhaler for his condition because it choked him. BVA Transcript at 4. The record compiled for appellate review of this matter appears incomplete. In December 2012, the Veteran indicated that all evidence of his current treatment was at the Orlando VA Medical Center (VAMC). In January 2013, he further stated that he received treatment at the Orlando, Gainesville, Viera, and Miami VAMCs. The last VA outpatient treatment records associated with the claims folder are dated in February 2010, more than three years ago. Upon Remand, attempts must be made to obtain any outstanding VA treatment records. 38 C.F.R. § 3.159(c)(2). The matter must also be remanded for new VA examination. The Veteran was afforded VA examinations in December 2009 and June 2012; however, in light of the missing records, and since it essential that each disability be viewed in relation to its history, a new examination is needed. 38 U.S.C.A. § 5103A. Moreover, clarification must be sought as to the nature of the current disability. Notably, upon VA examination in December 2009, the VA examiner opined the Veteran had moderate sleep apnea that became symptomatic after leaving the service, but was not related to his military service. In a January 2010 addendum opinion, the VA examiner found that the Veteran had two incidents of mild asthma in service, with no bronchodilators prescribed. The examiner opined the findings were consistent with mild, intermittent asthma that was active in service and therefore seemed as likely as not related to his military service and was exacerbated by dusty shipyard work he did in service. In June 2012, the VA examiner found no evidence of asthma. The Veteran was instead diagnosed with sleep apnea. In order to apply the proper rating criteria and determine the current severity of the disability, a new VA examination is warranted. The examiner is asked to answer the specific questions set forth in the numbered paragraphs below. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED 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. Take all indicated action in order to obtain copies of any of the Veteran's treatment records from the Orlando, Gainesville, Viera, and/or Miami VAMCs dated from February 2010 to the present. All records and/or responses received should be associated with the claims file. 2. After completion of the foregoing, schedule the Veteran for a VA respiratory examination to ascertain the nature and current severity of the service-connected asthma. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to the examiner for review. If the examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed, to include pulmonary function tests. The examiner should describe all findings in detail. The examiner should answer the following: a) Please describe the nature of any respiratory conditions currently present. b) Does the Veteran currently have asthma? If yes, please report the findings of the pulmonary function test administered and whether the results are pre- or post-bronchodilator. (Note: if post-bronchodilator studies are not performed, the examiner must state why). The examiner must also state whether there is intermittent inhalational or oral bronchodilator therapy. c) If the Veteran does not currently have asthma, please indicate whether the Veteran ever had such a respiratory condition. (Note: in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record). In answering this question, the examiner must make specific reference to the January 2010 VA addendum opinion, diagnosing the Veteran with mild, intermittent asthma, and explain any discrepancy with respiratory conditions currently present. d) Does the Veteran currently have obstructive sleep apnea and if so, is it at least as likely as not (50 percent probability or greater) related to the Veteran's active duty service? Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. In the interest of avoiding further remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. Adjudicate the raised claims of entitlement to service connection for a sleep condition (including sleep apnea) and breathing problems (including asbestos related lung disease). Additionally adjudicate the claim for TDIU. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record, to include any pertinent evidence contained within Virtual VA. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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 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). _________________________________________________ M. E. LARKIN 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).