Citation Nr: 1326006 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 08-32 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim. In April 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge at the RO. A transcript of this proceeding has been associated with the claims folder. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 asserts that he has a lung disorder that is related to treatment for pleurisy in service. A VA chest X-ray report dated January 2013 reveals findings of punctate peripheral calcified granuloma within the right midlung field; curvilinear nodule versus scar, pleural-based, appreciated within the posterior segment right upper lobe; and a punctate peripheral left midlung benign-appearing module. The Veteran contends that during military service at Fort Dix in 1957, he received treatment for breathing problems from exposure to cold weather. At that time, he was taken to the hospital at Fort Dix and that an X-ray report revealed pleurisy. He was thereafter hospitalized for six to seven weeks. The Board observes that the Veteran's service treatment records are unavailable for review. Moreover, in September 2006, the National Personnel Records Center (NPRC) attempted to obtain service treatment records and received a negative response. However, the Board notes that the Veteran is competent to attest to experiencing breathing problems and that he received treatment for such. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, an examination to determine if there is a nexus between the Veteran's claimed lung disability and his service is warranted. As indicated above, in September 2006, the RO received a negative response from the NPRC as to service treatment records. However, the RO did not request inpatient clinical records from the Veteran's period of service which are generally filed separately from the service treatment records. In addition, the RO did not inform the Veteran of alternative evidence that he may submit in lieu of the service treatment records to substantiate his claim. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. Accordingly, such should be accomplished on remand. Additionally, during the above-referenced Travel Board hearing in April 2013, the Veteran indicated that he received treatment for his lung disability at the VA Medical Center in Orlando, Florida. See the April 2013 Board hearing transcript, pgs. 13-14. However, the Board notes that the earliest VA treatment records associated with the Veteran's claims folder are dated November 2004 and do not reference treatment for the Veteran's lung disability. In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for lung disorders. After obtaining proper authorization, obtain any relevant records from private providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Request, through the appropriate channels, inpatient clinical records pertaining to hospitalization of the Veteran while on active duty at some point between January to April of 1957 at the Ft. Dix hospital. 3. After step 2 is complete, notify the Veteran that the agency of original jurisdiction received a negative response to its request for service treatment records. If the search for inpatient records was also negative, the notice should also reference the attempt(s) to obtain those records. Pursuant to 38 C.F.R. § 3.159(e), this notice should explain VA's efforts to obtain the records, describe any further action VA will take regarding the claim, including notice that VA will decide the claim based on the evidence of record unless the claimant submits the records, and notify the Veteran that he is ultimately responsible for providing the evidence. Also, inform the Veteran of alternative evidence that he may submit in lieu of the service treatment records to substantiate his claim. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 4. Obtain all VA treatment records dating from January 2004 pertaining to treatment of the Veteran at Orlando facilities. 5. After the above development is completed, to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed lung disability. The claims file, and any pertinent records contained in the Virtual VA eFolder, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and the physical examination, the examiner is asked to render an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's lung disability is related to his military service, to include treatment for breathing problems therein. In rendering the opinion, the examiner is requested to consider the Veteran's competent report of hospitalization in service for pleurisy and his reports of off-and-on symptomatology thereafter. The examiner is asked to provide the underlying reasons for any opinion expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The matter should then be returned to the Board, if in order, for further appellate process. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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).