Citation Nr: 1332282 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-14 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The appellant had a period of active duty for training (ADCUTRA) from November 1962 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 The Board finds it necessary to remand the issues of entitlement to service connection for a respiratory disability, to include COPD, to the agency of original jurisdiction for additional development and consideration. The VA examination note, dated February 2010, references VA treatment records for COPD, however, these records are not associated with the claims file. Additionally, the March 2010 VA examination addendum references VA treatment records in the clarification of the nexus opinion. While the dates and locations of these records referenced is not specified by the VA examiner, there are no VA treatment records associated with the claims file. Thus, on remand all relevant VA treatment records should be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Additionally, the July 2009 rating decision and the March 2010 statement of the case, both cite VA treatment records that cover the period from July 2008 to May 2009. However, these records are not associated with the claim file nor are they available in Virtual VA. Thus, these records, and updated treatment records, since May 2009, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell, 2 Vet. App. at 613 (1992). If the above development uncovers for the first time, additional relevant evidence related to a respiratory disability to include COPD, the RO/AMC should schedule another VA examination, including a review of the new evidence. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination that takes into account the records of prior medical treatment). Accordingly, the case is REMANDED for the following action: 1. Obtain the VA treatment records referenced in the February 2010 VA examination note and the March 2010 VA examination addendum, and although these records are not identified specifically, all relevant VA treatment records should be obtained and associated with the claims file. Specifically, obtain the VA treatment records, from July 2008 to May 2009, referenced in the July 2009 rating decision and the March 2010 statement of the case, and associate them with the claims file. Additionally, obtain updated VA treatment records, from May 2009 to the present, and associate them with the claims file. All attempts to obtain these records must be documented in the claims file. The appellant and his representative must be notified of any inability to obtain the requested documents. 2. After undertaking the above development, and if that development uncovers for the first time, additional relevant evidence related to the appellant's respiratory disability to include COPD, the RO/AMC should schedule the appellant for a VA examination to determine the nature, date of onset and etiology of any diagnosed respiratory disability to include COPD. Specifically, the examiner should review the claims file and first determine whether a respiratory disability to include COPD, existed or was incurred during the appellant's period of ACDUTRA. Thereafter, the examiner should state whether it is at least as likely as not (50 percent probability or more) that any diagnosed respiratory disability to include COPD, identified upon examination is related to his period of ACDUTRA. The complete record, to include a copy of this Remand, the claims folder and Virtual VA records, must be made available to and reviewed by the examiner in conjunction with the examination. The term at least as likely as not does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 3. If an examination is warranted, the RO/AMC must notify the appellant that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the appellant and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 that are remanded by the Board 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. 2013). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).