Citation Nr: 1328563 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 04-33 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to September 19, 2000, for a 100 percent rating for bronchial asthma with emphysema. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to January 1974. This matter came to the Board of Veterans' Appeals (Board) from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which assigned a 100 percent rating for bronchial asthma with emphysema, effective September 19, 2000. In a January 2009 decision, the Board denied the Veteran's appeal for an effective date prior to September 19, 2000, for a 100 percent rating for bronchial asthma with emphysema. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2009, the Court issued an Order which granted a joint motion of the parties for remand, and to vacate the Board's January 2009 decision. In March 2010, August 2011, and April 2013, this matter was remanded for further development. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In April 2013, the Board remanded this matter in part so that the RO/AMC may include consideration of the lay statement received from M.M when it readjudicated the issue of entitlement to an effective date earlier than September 19, 2000, for the grant of a 100 percent disability rating for bronchial asthma with emphysema. The RO/AMC was also asked to consider the issue of a rating greater than 30 percent for bronchial asthma with emphysema prior to September 19, 2000. In this regard, the Board noted that, per the August 2011 Board Remand, the Veteran's representative had asserted that the Veteran's appeal should also encompass an appeal for a rating greater than 30 percent for bronchial asthma with emphysema prior to September 19, 2000. Specifically, the Veteran's representative argued that VA medical records dated as early as 1982 should be construed as informal claims for an increased rating. As the Board determined that the RO had not addressed this aspect of the Veteran's appeal, the matter was remanded. Upon remand, the AMC issued a supplemental statement of the case dated in May 2013. The AMC styled the issue as entitlement to an effective date prior to September 19, 2000, for a 100 percent disability rating for bronchial asthma with emphysema and again denied the claim. In the text of the decision, the AMC noted that a May 1981 rating decision had increased the evaluation to 30 percent and that a February 2001 rating decision continued the 30 percent evaluation for bronchial asthma. The AMC also found generically that the evidence of record did not warrant an initial evaluation in excess of 30 percent. The AMC, however, did not discuss medical records, dated as early as 1982, that may be construed as an informal claim for an increased rating prior to the February 2001 rating decision, nor was the medical evidence (relied upon to deny a higher evaluation prior to September 19, 2000) identified or discussed. In addition, the AMC did not consider the lay statement received from M.M. when it readjudicated the issue of entitlement to an effective date earlier than September 19, 2000, for the grant of a 100 percent disability rating for bronchial asthma with emphysema. As compliance with the Board's previous remand requests is not complete, this matter must be remanded for compliance with the prior directives. In this regard, the Board notes that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Board in April 2013 remanded this matter so that the RO/AMC may attempt to obtain the Veteran's treatment records from Dr. R.G., Dr. A.P., and Long Beach Community Hospital. The AMC sent the Veteran a letter dated in April 2013 requesting that the Veteran sign and submit new authorization forms for these providers, as the previous forms were out of date. The Veteran failed to respond to his request. Upon remand, the Veteran should be provided an additional opportunity to submit the requisite forms so that VA may attempt to obtain these records. § 3.159(c)(1) (2012). Accordingly, the case is REMANDED for the following actions: 1. After obtaining an appropriate release from the Veteran, request the Veteran's treatment records from Dr. R.G. dated from 1984 to 1992, from Dr. A.P. dated from 1983 to 1995, and from Long Beach Community Hospital dated from May 13, 1981, to September 19, 2000. 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). 2. After the above actions have been accomplished, the RO/AMC should readjudicate entitlement to an effective date earlier than September 19, 2000, for the grant of a 100 percent disability rating for bronchial asthma with emphysema, to include consideration of the lay statement received from M.M. The RO/AMC should also consider the issue of a rating greater than 30 percent for bronchial asthma with emphysema prior to September 19, 2000. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ James L. March 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).