Citation Nr: 1322757 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11-21 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION 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 Veteran had active military service from November 1951 to October 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran testified before the Board at a May 2013 hearing conducted at the RO. A transcript of the hearing is of record. 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 The Veteran claims service connection for asthma as directly related to active service. Specifically, he testified at the May 2013 Board hearing that he was hospitalized for approximately 20 days for a respiratory disorder, which was then diagnosed as pneumonia, and was also exposed to high humidity and mold during his service at Ft. Jackson, South Carolina. The RO learned that the Veteran's service records were partially destroyed in the 1973 fire at the National Personnel Records Center (NPRC). In a case in which a Veteran's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the appellant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). The RO informed the Veteran that it was experiencing difficulty in obtaining his service records, and asked him to submit any evidence pertaining to these records, as well as to complete a VA Form NA-13055 to aid in reconstructing his medical records. Based on his response, the AOJ attempted to obtain sick and morning reports for the Veteran's unit. However, the Board notes that hospital or clinical records may be held at the facility at which clinical treatment was obtained. On remand, further attempts should be made to obtain these hospital and/or clinical treatment records. In addition, at the May 2013 Board hearing, the Veteran testified that he received treatment at a VA facility for approximately seven months in 1966. These records have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA must undertake efforts to acquire these records as they may be material to his claim. See 38 U.S.C.A. § 5103A(b). As a final note, the Board observes the Veteran has not been provided a VA examination with respect this service connection claim. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If, on remand, competent evidence is obtained suggestive of an etiological link between the Veteran's current asthma and his active service, a VA examination should be provided. 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. Search clinical records of the hospital/clinic at Ft. Jackson for the Veteran's treatment for a respiratory disorder between November 1 and December 31, 1951. VA must attempt to obtain records from a Federal department until it is reasonably certain that the records do not exist or that any further efforts to obtain the records would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e)(1). 2. Contact the Veteran and request that he provide the name and/or location of the VA facility at which he was hospitalized in 1966. All relevant treatment records identified by the Veteran should then be obtained and associated with the claims file. 3. If evidence is obtained suggesting a link between the Veteran's current asthma and active service, schedule him for a VA examination to address the nature and etiology of his current disability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file 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. Any testing deemed necessary should be performed. The examiner is requested to provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's current asthma is etiologically related to (incurred in, caused or aggravated by) his active service. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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 (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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).