Citation Nr: 1332096 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-13 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from May 1966 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal following a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. While the Veteran's claim on appeal was characterized by the RO as a claim for service connection for interstitial lung disease, the Board notes that the Veteran did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) associated with his lungs. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Pursuant to the holding in Clemons, the Board will consider the Veteran's claim as encompassing any respiratory disability. As such, the issue has been recharacterized on appeal as noted on the title page. Also, in the above noted December 2008 rating decision, the Veteran was granted service connection and assigned a noncompensable disability rating for bilateral hearing loss. The Veteran filed a notice of disagreement (NOD) in July 2009 contending that he warranted a compensable rating. In a February 2010 rating decision, the RO increased the Veteran's rating for bilateral hearing loss to 10 percent. In March 2010, the Veteran notified the RO that he was withdrawing his NOD as to bilateral hearing loss as he was satisfied with the 10 percent rating. Therefore, the issue with respect to a higher initial rating for bilateral hearing loss in no longer on appeal. Finally, in the above December 2008 rating decision, the RO, inter alia, denied the Veteran's claim for service connection for hypertension. The Veteran was notified of the decision in January 2009. Subsequently, in a March 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran identified that he was appealing the issues of interstitial lung disease and "hypertension." In a letter to the Veteran later in March 2010, the RO informed the Veteran that he had not timely filed an NOD to the denial of his claim for hypertension. The RO indicated that they would treat the VA Form 9 and the reference to hypertension as a reopened claim for that disability. In the March 2010 letter, the Veteran was provided his appellate rights. A review of the evidence of record does not reflect any appeal of the RO's decision. As such, the issue of service connection of hypertension is not currently in appellate status. 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 In a September 2008 VA treatment record, the Veteran reported that he was first diagnosed with interstitial lung disease in 1990 and that the onset of the disability was during his Oklahoma National Guard service. A September 1999 private treatment prescription form noted that the Veteran had been unable to attend weekend drill due to an episode of reactive airway disease. In the above noted July 2009 NOD, the Veteran requested that the RO obtain and review his Oklahoma National Guard records. A review of the claims file and the Veteran's Virtual VA electronic file does not reflect an attempt has been made to obtain the identified records. Furthermore, the record on appeal does not otherwise reflect the dates of the Veteran's service in the Oklahoma National Guard and/or any periods of active duty, active duty for training, or inactive duty training. As such, the agency of original jurisdiction (AOJ) should request the Veteran's Oklahoma National Guard medical and personnel records. In addition, the AOJ should clarify the Veteran's active duty, active duty for training, and/or inactive duty training while he was a member of the Oklahoma National Guard. Also, in a September 2008 duty to assist notification letter, the RO requested that only one medical provider be listed in any VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) submitted by the Veteran. Later in September 2008, the RO received a single VA Form 21-4142 from the Veteran which contained the names and addresses of four medical providers: Drs. Chandler, Craytor, West, and Gomez. An RO notation on the VA Form 21-4142 reflects that the RO was unable to request any records from the medical providers identified due to the fact that there was more than one medical provider listed. The Veteran was later notified of this fact in the December 2008 rating decision. Since that time, the Veteran has submitted private treatment records, a number of which appear to be from two of the four medical providers he listed on the VA Form 21-4142. Whether all the private treatment records have been obtained from the clinicians listed by the Veteran in the September 2008 VA Form 21-4142 is unclear. Therefore, the Veteran should again be requested to submit appropriate medical release forms to obtain any relevant treatment records from medical providers who have treated him for a respiratory disability. Finally, in an April 2009 VA treatment record, the Veteran was noted as attempting to obtain disability benefits from the Social Security Administration (SSA). A request to SSA for any available records pertain to the Veteran should be made. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's reported period of service with the Oklahoma Army National Guard to include any periods of active duty, active duty for training, and/or inactive duty training. 2. Obtain the Veteran's medical and personnel records associated with any service in the Oklahoma National Guard. If any such records, as identified per a July 2009 NOD, are not available, the Veteran should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e) (2013). 3. Request that the Veteran identify any private or VA treatment he may have received for his respiratory disability. After obtaining the appropriate release of information forms where necessary, procure records of any treatment identified. The Board is particularly interested in any VA treatment records dated since January 2010, as well as any treatment records from private physicians (Drs. Chandler, Craytor, West, and/or Gomez) who have treated the Veteran. If any records identified by the Veteran are not available, he should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e). 4. Submit a request to SSA for any available records pertaining to any disability claim filed by the Veteran with that agency. 5. After the above requested development has been completed, undertake any additional evidentiary development deemed appropriate (to include a VA examination, if warranted). Thereafter, re-adjudicate the claim on appeal. If the benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ THOMAS J. DANNAHER 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).