Citation Nr: 1318911 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 10-31 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for blastomycosis, to include as due to an undiagnosed illness and/or environmental hazards. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran & S.H. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from July 1988 to November 1988 and October 1990 to May 1991. The Veteran had service in Southwest Asia from November 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal originally included entitlement to service connection for bilateral hearing loss; however, this issue was granted in an October 2010 rating decision, and as such, is no longer on appeal. The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2012 by the undersigned Acting Veterans Law Judge. A transcript is associated with the claims file. 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 seeks entitlement to service connection for blastomycosis, to include as due to an undiagnosed illness and/or environmental hazards. The Veteran asserts he breathed in spores while on active duty in Southwest Asia, which caused his blastomycosis. The duty to assist includes assisting in the procurement of service medical records and pertinent treatment records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). The Board finds the duty to assist has not been met. The Veteran asserts he visited the Alvin C. York VA Medical Center in Murfreesboro for joint pain symptoms in approximately 1991 to 1992. This record has not been obtained. 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." Further, as it is a VA record, VA is held to have constructive notice of the contents of these records at the time of adjudication. Bell v. Derwinski, 2 Vet. App. 611 (1992). An attempt should be made to obtain this specific record. Additionally, all updated treatment records should be obtained and associated with the claims file. Also, the Veteran has not been afforded a VA examination for his blastomycosis and a medical opinion regarding etiology has not been obtained. A remand is necessary to afford the Veteran a VA examination and to obtain a medical opinion. Accordingly, the case is REMANDED for the following actions: 1. Obtain all updated and non-duplicative VA treatment records from May 1991 to present. Additionally, in particular, attempt to obtain the treatment record from 1991 or 1992 from the Alvin C. York VA Medical Center in Murfreesboro, where the Veteran sought treatment for joint pain. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After any additional records have been associated with the claims file, afford the Veteran a VA examination for his blastomycosis. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent), that the Veteran's blastomycosis is causally or etiologically due to service, had its onset during service, was caused by exposure to environmental hazards (i.e. breathing dust/spores while in Southwest Asia), or is due to an undiagnosed illness from Persian Gulf service. In rendering this opinion, the examiner should consider the Veteran's statements regarding the onset of his blastomycosis, including early symptoms of joint pain and his exposure to environmental hazards during service. The examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 3. The RO should then readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if appropriate. The Board intimates no opinion as to the ultimate outcome of this case. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA A. SMITH 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).