Citation Nr: 1326559 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-32 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for sarcoidosis. 2. Entitlement to service connection for a chronic stomach condition, to include as secondary to sarcoidosis. 3. Entitlement to service connection for chronic bronchitis, to include as secondary to sarcoidosis. 4. Entitlement to service connection for a low back condition to include as secondary to sarcoidosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, R.S., Sr., E.S. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to February 1993. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision in which the RO denied all claims on appeal. In April 2013, the Veteran and his parents testified before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of the hearing is associated with the claims file. For reasons discussed below, the issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran is seeking service connection for various disabilities; including sarcoidosis, chronic bronchitis, a chronic stomach condition, and a low back condition. He has asserted that his current low back condition is related to an in-service motor vehicle accident, while his other claimed disabilities are generally related to his military service, to include his exposure to sulfuric acid during service. At the April 2013 hearing, the Veteran testified that he was exposed to sulfuric acid during his first job in service, which was to make lead acid batteries for line vehicles. He also testified that he recalls becoming sick after his first exposure to sulfuric acid. See April 2013 hearing transcript, pp. 15-16. In the alternative, the Veteran has also asserted that his claimed low back, bronchitis, and stomach condition are secondary to his current diagnosis of sarcoidosis. See August 2007 VA Form 21-526; see also April 2013 video conference hearing transcript. The service treatment records (STRs) show that the Veteran was involved in a motor vehicle accident in July 1991 after which he sought treatment for cervical and lumbosacral strain. The STRs also show the Veteran sought treatment for low back strain in March 1990. In addition to the foregoing, the STRs also show the Veteran was treated for bronchitis in January 1990 and January 1993, although treatment in January 1990 resulted in a diagnosis of reactive airway disease. With respect to exposure to sulfuric acid, the STRs show that the Veteran denied exposure to sulfuric acid in November 1990. In December 1990, the Veteran noted that he was not aware of any exposure to possible hazardous materials or events on the job, but he reported smoking 10 to 15 cigarettes a day. The Board notes that the Veteran testified that he was exposed to sulfuric acid during his first job during service but the evidence shows that he specifically denied exposure to hazardous materials, including sulfuric acid, more than one year after he entered service. Therefore, while the Veteran is generally competent to report the events that occurred during service, his report of being exposed to sulfuric acid during service is deemed incredible for the purposes of this appeal. Nevertheless, the record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claim of entitlement to an increased rating for service-connected asthma. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In this case, the Board finds there is outstanding evidence that must be obtained before a fully informed decision may be rendered. At the April 2013 hearing, the Veteran testified that he has been receiving disability benefits from the Social Security Administration (SSA) since 2007. The Veteran did not indicate for what disability or disabilities he is receiving SSA benefits and the Board notes that the evidentiary record does not contain the SSA decision or the actual medical records and reports used by SSA in making its decision. Given the evidence of record, the Board cannot determine that no reasonable possibility exists that the SSA records are relevant to the Veteran's claims. Accordingly, this appeal must be remanded in order for VA to attempt to obtain the Veteran's SSA records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In addition to the foregoing, the Veteran testified that he received treatment for his back disability after service at Marian Hospital in Santa Monica, California, in 2006, as well as various chiropractors in the late 1990s. The record was left open for 60 days following the April 2012 hearing in order for the Veteran to submit copies of records from the chiropractors but the record does not contain any such records. VA has a duty to assist claimants in obtaining evidence necessary to substantiate a claim, including relevant records not in the custody of a Federal department or agency. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Therefore, because the Veteran has identified private treatment records that may be pertinent to this claim but are not yet associated with the claims file, a remand is necessary to obtain these records. In this context, the evidentiary record also contains VA outpatient treatment records, which document the Veteran's treatment at the Sepulveda, California, VA Medical Center (hereinafter "Sepulveda VAMC") from 2008 to 2009. On remand, the RO/AMC will be requested to obtain any outstanding VA treatment records. Once all outstanding records have been associated with the claims file, or it has been determined that either the records do not exist or that further efforts to obtain them would be futile, the RO/AMC should reexamine the claims file to determine whether any supplementary development is warranted. In this context, the Board notes that the Veteran was scheduled a VA examination in October 2012 to determine whether his claimed disabilities are related to his military service. However, the Veteran did not report for the scheduled hearing and the appeal was returned to the Board for adjudication. At the April 2013 hearing, the Veteran testified he was not correctly notified of the scheduled hearing, as notice of the scheduled examination was sent to the incorrect address. In this regard, review of the record reveals that notice of the scheduled VA examination was sent to the Veteran's address in Santa Monica, California, which is the Veteran's address of record. However, review of the record also reveals that the Veteran notified VA of a new address in Grover Beach, California, which is the current address the Veteran provided at the April 2013 hearing. Given the foregoing, the Board finds that, on remand, the Veteran should be scheduled a new VA examination to determine if his current claimed disabilities are related to his military service, with notice of the scheduled examination sent to his current address in Grover Beach, California. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, the case is REMANDED for the following action: 1. Request from the SSA all records related to the Veteran's claim for benefits, including all medical records and copies of all decisions or adjudications. All negative responses should be fully documented in the claims file. 2. Send the Veteran a letter requesting that he identify any VA or non-VA healthcare provider who treated him for his bronchitis, a chronic stomach condition, sarcoidosis, and low back condition since service, including any chiropractors who treated him in the late 1990s. After securing any necessary authorization from him, obtain all identified treatment records, to include those from Marian Hospital in Santa Monica, California, dated in 2006, and VA treatment records from the Sepulveda VAMC. Duplicate treatment records need not be associated with the record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) . 3. After any new evidence is obtained, schedule the Veteran for an appropriate VA examination(s) to determine if he currently has bronchitis, a chronic stomach condition, sarcoidosis, or a low back condition that may be related to his military service. Notice of the scheduled hearing should be sent to the Veteran's address in Grover Beach, California. The claims file must be made available to the examiner for review in conjunction with the examination and the examination report should reflect that such review was conducted. a. A diagnosis of any currently manifested (a) bronchitis, (b) sarcoidosis, (c) stomach disorder (other than sarcoidosis), or (d) low back condition should be rendered. In this regard, all indicated tests and studies should be conducted to identify the Veteran's current disability(ies). The examiner must identify the evidence that supports (or does not support) a diagnosis of the conditions listed above. b. If bronchitis is diagnosed, is it at least as likely as not (i.e., a probability of 50 percent or more) that bronchitis was incurred or is otherwise the result of his military service, to include his treatment for bronchitis during service in January 1990 and January 1993. Is it at least as likely as not (i.e., a probability of 50 percent or more) that bronchitis was caused by, a result of, or aggravated by sarcoidosis? An opinion must be provided with respect to causation and aggravation. c. If sarcoidosis is diagnosed, is it at least as likely as not (i.e., a probability of 50 percent or more) that sarcoidosis was incurred or is otherwise the result of his military service? d. If a stomach condition (other than sarcoidosis) is diagnosed, is it at least as likely as not (i.e., a probability of 50 percent or more) that the stomach condition was incurred or is otherwise the result of his military service? Is it at least as likely as not (i.e., a probability of 50 percent or more) that a stomach condition was caused by, a result of, or aggravated by sarcoidosis? An opinion must be provided with respect to causation and aggravation. e. If a low back condition is diagnosed, is it at least as likely as not (i.e., a probability of 50 percent or more) that the low back condition was incurred or is otherwise the result of his military service, to include the motor vehicle accident in July 1991 or treatment for low back pain in January 1990 and July 1991 ? Is it at least as likely as not (i.e., a probability of 50 percent or more) that a low back condition was caused by, a result of, or aggravated by sarcoidosis? An opinion must be provided with respect to causation and aggravation. f. In answering the foregoing, the VA physician must consider all lay and medical evidence of record, including all lay evidence of continuity of symptomatology after service. The physician must also note that the Veteran is generally competent to report the events that occurred during service, as well as the nature and onset of his symptoms, and his report of such is considered competent and credible unless otherwise noted. g. A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere speculation, the examiner must clearly specify in the examination report why this is so. 4. After all of the above actions have been completed, readjudicate the claim on appeal. If the claims remains denied, issue to the Veteran and his representative a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, and he has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may result in the claim being rated on the evidence of record or denial of the claim. 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ MARJORIE A. AUER 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).