Citation Nr: 1323934 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-43 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, including asthma. 2. Entitlement to service connection for residuals of heat exposure, including dizziness. REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran was a member of the U.S. Army Reserves with a period of active duty (AD) service from January to December 2003. He has a verified period of active duty for training (ACDUTRA) from October 2001 to February 2002. However, no other periods of ACDUTRA and/or inactive duty training (INACDUTRA) have been verified. This appeal to the Board of Veterans' Appeals (Board) is from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted service connection for irritable bowel syndrome (IBS) and a right shoulder disability, but denied service connection for physiologic reflux, an endocrine disorder, residuals of heat exposure, asthma, a left knee disorder, and posttraumatic stress disorder (PTSD). The Veteran appealed the initial ratings assigned for the IBS and right shoulder disability (see Fenderson v. West, 12 Vet. App. 119 (1999)) and the denials of service connection for the other claimed conditions, except the endocrine disorder. During the pendency of the appeal, the RO granted service connection for PTSD and assigned an initial 30 percent rating. And the Veteran, in response, also appealed that initial rating. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). In July 2011, the Board granted a higher 50 percent rating for PTSD and granted service connection for physiologic reflux (claimed as hiatal hernia, gastrointestinal condition and gastroesophageal reflux disease (GERD)), though the overall rating for the gastrointestinal disability, so also including the IBS, did not change; in other words, the Board denied the claim for a rating higher than 30 percent for the aggregate gastrointestinal disability. The Board also granted a higher 20 percent rating for the Veteran's right shoulder disability, but denied service connection for a left knee disability. The Board remanded the claims for service connection for a respiratory disorder, including asthma, and for residuals of a heat stroke for further development. After completing the additional development, the RO continued to deny these claims (as reflected in an April 2012 supplemental statement of the case (SSOC)), so returned these claims to the Board for further appellate consideration. In regards to the claim for service connection for residuals of heat exposure, as will be discussed below, the Veteran has reported experiencing dizziness during and since his military service as one residual. In light of this, the Board has recharacterized this claim to include this alleged dizziness. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Because, however, these claims remaining on appeal require still further development before being decided, the Board is again remanding them to the RO. Since the Veteran is represented in this appeal by a private attorney, the remand of these claims must be directly to the RO rather than by way of the Appeals Management Center (AMC) in Washington, DC. REMAND The Board sincerely regrets the additional delay that inevitably will result from this additional remand of the claims, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. As an initial matter, the record reflects there is outstanding evidence potentially pertinent to these claims, so needing to be obtained. 38 C.F.R. § 3.159(c). Pursuant to the Board's prior July 2011 remand directives, the Veteran was afforded VA examinations in January 2012 in conjunction with the claims on appeal. The examiner indicated that she had reviewed the Veteran's claims file. She also reported that she had reviewed his Computerized Patient Record System (CPRS) records, which were not in the claims file. She included in her VA respiratory examination report a VA pulmonary physician note from January 2008. The claims file currently includes treatment records from the local Wichita VA Medical Center (VAMC), including its affiliate the Salina Clinic, dated from December 2003 to July 2004, from June 2005 to October 2007, and from February 2008 to March 2010. The January 2012 VA examination report, however, indicates that additional VA treatment records are available, including in the CPRS. As any additional records of VA treatment not currently associated with the file for the Board's review are potentially pertinent to the appeal and within the control of VA (meaning constructive even if not actual possession), they must be obtained and associated with the claims file for consideration. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA also has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). During the January 2012 VA examination, the Veteran reported that he was treated in a local emergency room for heat exposure during service in Arizona. He added that he went to the emergency room in Salina, Kansas, when he got home, where a CT scan of his head was negative. While June 2005 emergency room records from the Kansas facility are of record, private emergency room records from Arizona, regarding treatment for heat exposure, are not of record. As the claims are being remanded, the RO also must attempt to obtain these other records. Further medical comment regarding the claims on appeal is also warranted. Both claims were previously remanded in July 2011 to obtain medical opinions regarding these claimed disabilities. In regards to the claim for service connection for a respiratory disorder, the Board pointed out that the Veteran's service treatment records (STRs) from his periods of service from October 2001 to February 2002 and from January to December 2003 did not show any respiratory-related complaints; however, later dated records indicate he was treated in July 2004 for difficulty breathing, a cough, and sinus congestion. The examiner diagnosed frequent cough, sinusitis and bronchospasm. A Temporary Profile was issued for asthma in August 2004. An April 2007 VA treatment record indicates the Veteran had no previous diagnosis of asthma. He had a VA general medical examination in December 2007. A chest X-ray was negative (normal). His nose also was straight with no obstruction or purulence. As well, there were no nasal polyps, turbinate hypertrophy, purulence or crusting. His sinuses also were nontender. There were no oral or pharyngeal lesions, and his tonsils were normal with no injection or exudate. Spirometry, lung volumes, and diffusion capacity were normal, too. Methacholine challenge was interpreted as positive. The examiner did not diagnose asthma or any other respiratory condition. The Board also noted in July 2011 that the Veteran had indicated that he had resumed smoking cigarettes after returning from Iraq, but before receiving treatment for his respiratory complaints in July 2004. As stated in the prior remand, for claims, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. The Board directed that the Veteran should be afforded a VA examination to determine whether he has a respiratory disorder such as asthma, chronic sinusitis or allergic rhinitis, and its etiology. In particular, the examiner was asked to indicate the likelihood (very likely, as likely as not, or unlikely) that any diagnosed respiratory disorder either: (1) initially manifested during the Veteran's active military service from October 2001 to February 2002 and from January to December 2003, such as from the inhalation of smoke from burning fuels or other air pollutants while stationed in Iraq in 2003; (2) alternatively initially manifested during a subsequent period of ACDUTRA in 2004 or 2005; or (3) is instead more likely related to or the result of post-service tobacco use, i.e., smoking. The Veteran was afforded a VA examination to evaluate his claimed respiratory disorder in January 2012. Confusingly, the VA examiner indicated that the Veteran had asthma, but, later in her examination report, the examiner stated that there was no objective finding of asthma. She commented that the Veteran reported that he did not use any asthma medications because, the last time he used them, they seemed to make him worse. She noted that the Veteran thought he had improved due to his lungs clearing themselves after leaving Iraq and the environmental exposures. The examiner acknowledged review of the claims file, CPRS records, and cited to a medical reference indicating that a PFT was a critical tool in the diagnosis of asthma, showing expiratory airflow obstruction. This reference, Up to Date, also indicated that panic disorder and cigarette smoking are principle considerations for the trigger of lung symptoms and, in asthma, there is prolonged rather than short term bronchial hyperresponsiveness and airflow obstruction by exposure to an inhaled irritant. According to Up to Date, when there is less than a dramatic response to a course of asthma medication it is suggestive of a diagnosis other than asthma. The examiner indicated that she had been asked whether the Veteran's respiratory disorder was at least as likely as not incurred in or caused by his military service that occurred in 2004 and 2005. She opined that it was less likely than not that the Veteran's claimed respiratory disorder was incurred in or caused by the claimed in-service injury, event, or illness. In providing a rationale for her opinion, the examiner commented that the CPRS notes showed a history of intermittent breathing problems unrelated to any lung condition and, in Iraq, the breathing symptoms were in response to the Iraq environment, without the prolongation of such symptoms, as found in asthma. She added that there was no objective finding of asthma evidenced by PFTs and the Veteran's current shortness of breath shown in multiple documentations was related to episodes unrelated to a lung condition. She added that the Veteran reported that he was improved and there was no current objective evidence of asthma, observing that the fact that asthma medications were not helpful showed the unlikelihood of asthma. The examiner further commented that it was more likely that the Veteran's breathing condition was impacted by his smoking habit. In May 2012, the Veteran's attorney asserted that 38 C.F.R. § 3.317 should be considered in the Veterans' case, particularly in light of his respiratory symptoms. The evidence of record reflects that the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, as his Form DD 214 regarding his service from January to December 2003, indicates that he served in Kuwait and Iraq from February 2003 to October 2003. As a Persian Gulf Veteran, compensation may be established for objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent prior to December 31, 2016 and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: undiagnosed illness and or medically unexplained chronic multi symptom illnesses such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six month period will be considered chronic. The six month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). As indicated above, the January 2012 VA examiner found that there was no objective evidence of asthma, and commented that the CPRS notes showed a history of intermittent breathing problems unrelated to any lung condition. Despite her conclusions, the VA examiner did not provide an opinion as to whether the Veteran's reported respiratory symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. Because VA undertook to provide an examination to evaluate the service-connected respiratory disorder, the Board must ensure the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). If not, it is incumbent on the Board to return the examination report as inadequate so it may be corrected by obtaining all necessary additional information. See 38 C.F.R. § 4.2. In light of the evidence of record, the Veteran's confirmed honorable service in the Southwest Asia Theater of operations during the Persian Gulf War, and the assertions of his attorney, the Board finds that the claims file should be returned to the January 2012 for a supplemental medical opinion. Moreover, the Veteran has reported breathing problems during his service in Iraq, as indicated in an August 2008 statement and as documented in September and October 2003 Post-Deployment Health Assessments. In the August 2008 statement, the Veteran added that he still had breathing problems. The Veteran is competent to describe symptoms such as breathing problems. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is also competent to report a continuity of symptomatology. Charles v. Principi, 16 Vet. App. 370 (2002). The August 2008 statement indicates that the Veteran had breathing problems during and since service. This report of a continuity of symptomatology suggests a link between his current breathing problems and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). In rendering the supplemental opinion, the VA examiner should consider and address the Veteran's report of breathing problems since his service in Iraq. The Board observes that the Veteran's STRs include an October 2001 Volunteer Agreement Affidavit, in which the Veteran agreed to participate in "A Double Blind Placebo-Controlled Clinical Effectiveness Trial of the 23-Valent Pneumococcal Vaccine Among Military Trainees at High Risk of Respiratory Disease." The VA examiner should consider and address the Veteran's participation in this clinical trial. She should further address an August 2004 Annual Medical Certificate indicating that the Veteran had complained of difficulty breathing since coming home from his last deployment, with increased coughing at night, and reporting that his PFTs confirmed asthma. The Board further observes that, in May 2007, the Veteran reported to a VA mental health care provider that he had been at his current job for 21/2 months, and had quit his previous job after six months after reading online that the "acid pits" at that place of employment were unhealthy for a person's lungs. The VA examiner should consider and address the impact of any post-service exposures, to include this employment, on the Veteran's claimed respiratory disorder. In rendering the requested additional medical opinion, the examiner should, to the extent possible, discuss whether any of the Veteran's respiratory complaints may be related to his service-connected PTSD. In this regard, the Veteran stated during his May 2007 mental health clinic intake assessment that he became short of breath and panicky during dust storms or when subjected to chemical fumes in Iraq, and commented that he could not really tell an asthma attack from a panic attack. If the Veteran's respiratory symptoms are symptoms of the service-connected PTSD (as part of panic attacks associated with that disability), an award of service connected compensation for a disability manifested by these symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; compare 38 C.F.R. § 4.14 (the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14, it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). In regard to the claimed residuals of heat exposure, the Veteran received treatment in a private emergency room in June 2005 for complaints of dizziness, a mild headache, and mild blurred vision since being on Army maneuvers in Arizona nine days earlier. The evaluating physician indicated dizziness, vision problems, etiology uncertain, consider labrynthitis. The December 2007 VA examiner determined there was insufficient clinical evidence to diagnose any heat injury or any residuals of mild heat injury. In light of this evidence, the Board directed in the July 2011 remand that the Veteran should be afforded a VA examination to determine whether he has any residuals of a heat injury in June 2005. The Veteran was afforded a VA examination to evaluate his claimed residuals of heat injury in January 2012. He reported that he had heat exposure, shortness of breath, and dizziness, but no treatment, during his deployment to Iraq in 2003. He also described in-service exposures to dust and fumes. He added that, after returning to the United States, he served for two weeks in Arizona where temperatures were 100 degrees and he had dizziness, dehydration, and vomiting; was assessed for heat exposure; and was given IVs. He reported being treated with fluid replacement in a local emergency room. He added that, presently, he experienced dizziness and shortness of breath when exposed to summer heat. The VA examiner commented that the Veteran did not have, nor had he ever been diagnosed with an ear or peripheral vestibular condition. However, the Veteran reported dizziness in Iraq in 2003 due to heat exposure and later in the United States, also with heat exposure and elevated blood sugar. He stated that he did not currently have dizziness; rather, he only experienced dizziness in the morning or in heat. The examiner acknowledged review of the claims file, CPRS records, and reported that, according to Up to Date, labyrinthitis is an acute condition without chronicity or due to central nervous system involvement which can be ruled out by imagery testing. According to this medical reference, migraine headaches and otitis media are also causes of vertigo. The examiner added that, according to Up to Date and Web MD, the symptoms of heat exhaustion include confusion, dark-colored urine (indicating dehydration), dizziness, fainting, fatigue, headaches, muscle cramps, nausea, pale skin, profuse sweating, and rapid heartbeat from either fluid or salt depletion. According to these sources, sensitivity to heat exposure can be significant for up to one week. The examiner indicated that she had been asked whether the Veteran's heat injury was at least as likely as not incurred in or caused by his military service that occurred in 2004 and 2005. She opined that it was less likely than not that the Veteran's claimed heat injury was incurred in or caused by the claimed in-service injury, event, or illness. In providing a rationale for her opinion, the examiner noted that there was no objective evidence of diabetes mellitus, so there was no link between the Veteran's vertigo and a diabetes mellitus condition. She added that there was no chronic ear or central nervous system condition (eliminated by a CT of the head) causing vertigo, and there was no provision of a nexus for his claim of vertigo to military service or heat injury. The examiner stated that there was no evidence of migraines or otitis media that might cause vertigo and there was no objective finding of vertigo. In regard to his in-service heat injury, she stated that the Veteran's symptoms were acute and transitory and evidence showed that there was no recurrence of the condition after one week with this type of heat exposure. In light of his complaints of blurred vision, the Veteran was also afforded a VA eye examination. He reported a history of blurred vision for three to four years. The diagnoses were blurred vision secondary to uncorrected astigmatism and congenital red-green color deficiency. Despite the negative opinions provided by the January 2012 VA examiner, the Veteran has, as he is competent to do, reported dizziness during service, including, as reported during the most recent VA examination, during his 2003 service in Iraq. See Layno, supra. He has also reported current dizziness, as indicated by his report of dizziness when exposed to summer heat. The VA examiner provided a negative nexus opinion regarding the claimed residuals of heat injury; however, she did not address whether the Veteran's reported dizziness may be a neurological sign or symptom representing an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. Accordingly, on remand, the examiner should also provide a supplemental medical opinion addressing this matter. The examiner should, to the extent possible, discuss whether any of the Veteran's complaints reportedly associated with his claimed heat injury may be related to his service-connected PTSD. In this regard, the Veteran stated during a March 2009 VA PTSD examination that he had dizziness with panic attacks. One additional point also worth noting, however, is that a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Asthma, breathing difficulties, and dizziness are not conditions identified in § 3.309(a) as chronic, per se, so not the type of condition subject to this continuity of symptomatology exception. Additionally, further development may be necessary to ensure compliance with the Board's July 2011 remand directives. In the prior remand, the Board noted that the Veteran claimed his asthma diagnosis and heat injury occurred after his period of active duty (AD) ending in December 2003. His periods of ACDUTRA and INACDUTRA following his active duty service have not been verified; however, the record reflects that he was discharged from the U.S. Army Reserves in January 2006. As the Board pointed out in July 2011, the Veteran was treated at the Sioux Falls VAMC in July 2004 for respiratory problems, and this record indicates he was on active duty at the time. Asthma was diagnosed several weeks later in August 2004; however, the Board noted that his duty status at that time was unclear in terms of whether he perhaps was on ACDUTRA or INACDUTRA. Significantly, an August 2004 Physical Profile indicates that the Veteran was placed on a temporary profile for one year for asthma. This Profile reflects that the Veteran was authorized a 12 month Trial of Duty (TOD) and he and his unit were advised to have his condition monitored in order to perform his military duties. The Board further observed in the July 2011 remand that the Veteran reported being on maneuvers at Fort Huachuca in June 2005 and suffering a heat-exposure-related injury. As was previously discussed in the July 2011 remand, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). The United States Court of Appeals for Veterans Claims (Court), however, has clarified that the language of 38 U.S.C. §§ 101 and 1112-1137 clearly indicates that the presumptions of service connection and aggravation do not apply where the claim is based on a period of ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., the Veteran's prior period of active duty) does not obviate the need for him to establish that he also is a "Veteran" for purposes of the period of ACDUTRA in question since his claim for VA benefits is premised on this period of ACDUTRA. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. Id; see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Because the Veteran's duty status at the time of the asthma diagnosis and heat injury is essential to his claims, the Board instructed in July 2011 that this needed to be verified prior to the proper adjudication of these claims. Accordingly, the RO was instructed to verify the Veteran's duty status from July to August 2004 when he received a diagnosis of asthma and later in June 2005 when he reported sustaining a heat exposure related injury. Unfortunately, however, there is no indication that the RO undertook any action to verify the Veteran's duty status as instructed in the July 2011 remand. Rather, a worksheet completed by the Decision Review Officer (DRO) indicates that, in regard to the need for service verification, Defense Personnel Records Image Retrieval System (DPRIS) had been found in the claims file. The page from DPRIS, printed in December 2007, indicates that DPRIS included the Veteran's January 2006 separation orders, his October 2003 separation orders, and his September 2001 application for enlistment. Copies of these documents were provided. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance." Id. Unfortunately, despite the Board's July 2011 remand instructions, there is no indication that the RO, as directed, attempted to verify the Veteran's periods of active duty, ACDTURA, and/or INACDUTRA subsequent to December 2003 (to particularly include attempting to verify his duty status from July to August 2004 and in June 2005). However, while the Veteran has reported, as he is competent to do, current breathing problems and dizziness, the record presently before the Board does not reflect a current disorder to which these complaints may be attributed. Symptoms, such as breathing problems and dizziness, in and of themselves, do not constitute disabilities for which service connection can be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001); see Evans v. West, 12 Vet. App. 22 (1998). A successful service connection claim requires evidence of a current disability at the time of claim, as opposed to some time in the past. See Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Here, the Veteran filed his claim for service connection in November 2007. If any evidence obtained on remand indicates that the Veteran has a current disability manifested by breathing problems and/or dizziness, further development is required to ascertain the Veteran's duty status since December 2003. This is important in light of the July 2004 VA treatment record indicating that the Veteran was seen for respiratory problems while on active duty, as well as an August 2004 service treatment record indicating that pulmonary function tests (PFTs) confirmed a diagnosis of asthma, and the August 2004 Temporary Profile for that condition. Further, in regard to his claim for service connection for residuals of heat stroke, a June 2005 private emergency room record indicates that the Veteran presented with complaints of dizziness, a mild headache, and mild blurred vision since being on Army maneuvers in Arizona nine days earlier. Accordingly, if any evidence obtained on remand indicates that the Veteran has had a disability manifested by breathing problems and/or dizziness at any time since November 2007 (when the Veteran filed his claim for service connection) the RO must undertake appropriate action to verify the Veteran's duty status (that is, determine whether he was on active duty, ACDUTRA, and/or INACDUTRA) at any time between December 2003 and January 2006, to particularly include from July to August 2004 and in June 2005. The Board notes, however, that one other element to be considered in regard to any additional periods of service is that the January 2006 separation orders indicate that the Veteran was discharged from the U.S. Army Reserve under other than honorable conditions. The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant's service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits, including compensation benefits, are not payable unless a period of service upon which the claim is based was terminated by a discharge or release under conditions other than dishonorable. See 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12(a). Benefits are not payable where the former service member was discharged or released by discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). A discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d)(4). This includes a discharge under other than honorable conditions if it is determined that it was issued because of willful and persistent misconduct. Id. An exception is provided under that regulation if the discharge was because of a minor offense and service was otherwise honest, faithful and meritorious. Additionally, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. See 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(b). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). The Veteran's Form DD 214 for his period of active duty from January to December 2003 reflects that the character of service for this period was honorable. The Form DD 214 for his period of ACDUTRA from October 2001 to February 2002 reflects that the character of service was uncharacterized. Nevertheless, after verifying any periods of active duty, ACDUTRA, and/or INACDUTRA between December 2003 and January 2006, the RO must also clarify whether the character of discharge from any period of service subsequent to December 2003 was under conditions other than dishonorable, as defined in 38 C.F.R. § 3.12. The Board highlights that, in making any such determination, the RO should consider whether any subsequent periods of service which may have concluded with a discharge under "other than honorable conditions" may have been upgraded. In this regard, during VA treatment in July 2007, the Veteran reported to his social worker that he planned to talk with his representative about how to get his less than honorable discharge from his second enlistment changed in his military record. A March 2009 VA PTSD examination report indicates that the Veteran reported that he was to be deployed to Iraq a second time, and was activated to Sioux Falls, Iowa, but was sent home to due a history of breathing problems, but he continued in the Reserves, and was eventually honorably discharged. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed respiratory disorder and/or residuals of heat injury, to include dizziness. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for: (1) any outstanding treatment records from the Wichita VAMC, to include the Salina Clinic, dated from July 2004 to June 2005, from October 2007 to February 2008, and since March 2010, and (2) records of treatment for heat exposure from an emergency room in Arizona, as referenced during the January 2012 VA examination. The amount of efforts needed to be expended in obtaining records identified depends on who has custody of them. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 38 C.F.R. § 3.159(e)(1). 2. After completing the above development, if any evidence indicates that the Veteran has had a disability manifested by breathing problems and/or dizziness at any time since November 2007, undertake appropriate action to attempt to verify the Veteran's duty status between December 2003 and January 2006. Specifically, clarify whether the Veteran was on active duty, ACDUTRA, and/or INACDUTRA during any period between December 2003 and January 2006. Of particular concern is whether the Veteran was on active duty, ACDUTRA, or INACDUTRA in July and/or August 2004 and in June 2005. After verifying any periods of active duty, ACDUTRA, and/or INACDUTRA between December 2003 and January 2006, the RO must also clarify whether the character of discharge from any period of service subsequent to December 2003 was under conditions other than dishonorable, as defined in 38 C.F.R. § 3.12. The Board highlights that, in making any such determination, the RO should consider whether any subsequent periods of service which may have concluded with a discharge under "other than honorable conditions" may have been upgraded. 3. Forward the claims file to the examiner that performed the most recent January 2012 VA examination, if still available, for a supplemental medical opinion. In regard to the claimed respiratory disorder, the examiner should comment as to whether the Veteran's respiratory complaints are attributable to a known diagnostic entity, to include chronic sinusitis, allergic rhinitis, bronchospasm, and/or any diagnosis present at any time since November 2007, when the Veteran filed his claim for service connection. The examiner should address whether the Veteran's respiratory complaints are symptoms of panic attacks associated with the Veteran's service-connected PTSD, as opposed to manifestations of a separate and distinct disability. If there are symptoms related to the Veteran's respiratory complaints that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. If the Veteran's respiratory complaints are attributed to a known diagnostic entity, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the disorder was incurred or aggravated as a result of the Veteran's active military service, including both his active duty and ACDUTRA, or is related to an injury, though not disease, incurred or aggravated during any verified period of INACDUTRA. In making this necessary determination, the examiner should address the Veteran's reports of breathing problems during and since service, as indicated in an August 2008 statement. In rendering her opinion, the examiner must also consider the Veteran's October 2001 agreement to participate in "A Double Blind Placebo-Controlled Clinical Effectiveness Trial of the 23-Valent Pneumococcal Vaccine Among Military Trainees at High Risk of Respiratory Disease", as documented in his service treatment records, particularly considering whether such participation indicates that he was at high risk for respiratory disease. The examiner should also consider an August 2004 Annual Medical Certificate indicating that the Veteran had complained of difficulty breathing since coming home from his last deployment, with increased coughing at night, and reporting that his PFTs confirmed asthma. The examiner should further address the impact of any post-service exposures, including exposures to "acid pits" at his place of employment (as discussed during VA treatment in May 2007) on the Veteran's claimed respiratory disorder. The examiner must also address whether any respiratory disorder is related to or the result of tobacco use, i.e., smoking. The examiner is advised that the Veteran has reported exposure to smoke, sand, and fumes during service in Iraq and Kuwait. The Board accepts the Veteran's assertions of in-service exposures as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a). In regard to the claimed residuals of heat exposure, including dizziness, the examiner should comment as to whether the Veteran's complaints of dizziness are attributable to a known diagnostic entity, to include any diagnosis present at any time since November 2007, when the Veteran filed his claim for service connection. The examiner should address whether the Veteran's complaints of dizziness are symptoms of panic attacks associated with the Veteran's service-connected PTSD, as opposed to manifestations of a separate and distinct disability. If there are symptoms related to the Veteran's reports of dizziness that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. If the Veteran's complaints of dizziness are attributed to a known diagnostic entity, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the disorder was incurred or aggravated as a result of the Veteran's active military service, including both his active duty and ACDUTRA, or is related to an injury, though not disease, incurred or aggravated during any verified period of INACDUTRA. If, for whatever reason, it is not possible to have this same examiner provide these additional comments, then have someone else do it that is qualified to make these necessary determinations. In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or whether, instead, the necessary additional responses can be provided merely from reviewing the claims file. If further examination of the Veteran is deemed necessary, arrange for him to undergo this additional examination. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Conduct any other appropriate examination and development deemed necessary. If not previously accomplished, this may include attempting to verify the Veteran's duty status between December 2003 and January 2006 if the additional medical opinion attributes the Veteran's complaints regarding breathing problems and dizziness to any known diagnostic entity. Then readjudicate these claims in light of this and all other additional evidence. If any claim is not granted to the Veteran's satisfaction, send him and his attorney another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN 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).