Citation Nr: 1333730 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-23 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for residuals of dental injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to April 1984, and from October 1985 to August 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an November 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in St. Petersburg, Florida. Jurisdiction has been retained by the RO in New York, New York. The Board notes that the Veteran originally filed her April 2007 claim as for "asthma due to allergies." In her October 2008 notice of disagreement, she alleged that her preexisting "allergies" were aggravated by service and caused her to experience exercise-induced asthma, as well as sinus infections and ear infections. On her June 2009 substantive appeal, the Veteran clarified that her claim herein was for service connection for exercise-induced asthma and for asthma as a result of aggravation of her preexisting allergies, and that her sinus complaints were a separate issue. Subsequently, the Veteran filed a separate claim for service connection for ear infections. Therefore, the Board has recharacterized the issue on appeal as for asthma generally (which may include asthma related to allergies or exercise-induced). 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 A. Asthma The Veteran served on active duty from October 1981 to April 1984, and from October 1985 to August 1987. She claims that he has asthma that had its onset in service, including but not necessarily limited to exercise-induced asthma. She has also alleged that her asthma may be the result of aggravation of her preexisting allergies. As an initial matter, the Board notes that the Veteran's VA treatment records reflect that she has been followed for diagnosed asthma. See, e.g., May 2003, June 2003, July 2006, September 2010, October 2012. With regard to the Veteran's service treatment records, April 1987 records reflect that the Veteran reported a past medical history of seasonal allergies, and reported experiencing swollen eyes and difficulty breathing after running. An allergy clinic evaluation reflects that testing revealed a 4+ reaction to cats and dogs, and a 3+ reaction to molds, but no reaction to grass or trees. Diagnoses of a dander allergy, "no seasonal allergy noted," and possible exercise-induced asthma, were recorded. She was prescribed Albuterol pre-exercise. See also June 1987 separation report of medical history. The Veteran has not been provided with a VA examination relating to her claim. As shown above, she has currently diagnosed asthma, and her service treatment records show diagnosed possible exercise-induced asthma in April 1987. Therefore, the Board finds that the low-threshold requirement for a VA examination has been met, and that this claim must be remanded to provide the Veteran with a VA examination relating to her claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the Board notes that none of the Veteran's service treatment records from her first period of service have been associated with the claims file except for a few February 1984 inpatient records. The Board does acknowledges that one request was made in August 2007 to NPRC for copies of all of the Veteran's service treatment records, but only those records from her second period of service were received. Therefore, the Board finds that a remand is also necessary so that further attempts may be made to obtain copies of the Veteran's service treatment records from her first period of service, including any inpatient treatment records from the Lundstahl, Germany Army Hospital. Also, an April 2008 VA treatment record includes a notation that the Veteran was in receipt of disability income from the Social Security Administration (SSA) due to her neck, head, left arm, left shoulder, back, depression, and asthma. Copies of her records from SSA have not been associated with the claims file. Therefore, the Board also finds that a remand is necessary so that copies of the Veteran's SSA records may be obtained. The Veteran indicated on a January 2010 statement that she had been treated at the VA Medical Center in Indianapolis, Indiana in 1987, albeit not entirely clear whether she was referring to treatment for asthma. Similarly, she noted that she has been followed at the Castlepoint VA Medical Center since 2001. The Board notes that Castlepoint records dated since February 2003 are already associated with the electronic claims file. Therefore, a remand is also necessary so that copies of any outstanding VA treatment records from Indianapolis dated in 1987, and from Castlepoint dated from January 2001 to January 2003, may be associated with the claims file. She also indicated that she had had private treatment. Therefore, on remand, she should be provided with another opportunity to identify any outstanding private treatment records for VA to obtain. B. Dental Injury The Veteran also claims that during her first period of active service, around 1982 or 1983 and while serving in Pirmasens, Germany, she fell down stairs and injured two front teeth, one of which fell out and the other she reports was removed at the Lundstahl Army Hospital. As an initial matter, a January 1986 service dental record shows that teeth numbers seven and eight were missing. X-rays from 1986 are also in the claims file. The Board also notes that during her second period of active service, the Veteran served as a dental specialist. As noted above, the Veteran's claims file is missing her service treatment records from her first period of service. Therefore, her claim for service connection for residuals of dental injury must be remanded so that her service treatment records from her first period of service (when she alleges the dental injury occurred) may be obtained. Also, copies of any inpatient records of treatment in Lundstahl, Germany should be obtained. The Board acknowledges that the Veteran apparently made a request directly to NPRC for certain inpatient records, and some February 1984 records have been associated with the claims file relating to a psychiatric hospitalization, but not relating to any dental injury. If any of these records are able to be located and they confirm dental injury in service, then the Veteran should be provided with a VA examination relating to her claim. Accordingly, the case is REMANDED for the following action: 1. Make further attempts to obtain copies of the Veteran's service treatment records from her first period of active service, including any inpatient treatment records from the Lundstahl, Germany Army Hospital dated in 1982 or 1983 relating to a dental injury. 2. Obtain copies of any outstanding VA treatment records from the Indianapolis VA Medical Center dated from January 1987 to December 1987, and from the Castlepoint VA Medical Center dated from January 2001 to January 2003, and associate them with the claims file. If any of these records are found to be unavailable, this should be specifically noted in the claims file. 3. Provide the Veteran with an opportunity to identify any outstanding private treatment records relating to her claims for service connection for asthma and for residuals of dental injury. To that end, provide the Veteran with Forms 21-4142. 4. Obtain copies of the Veteran's records from SSA. 5. After all of the above development has been completed, schedule the Veteran for a VA examination with an appropriate physician to determine the current nature and the etiology of her asthma. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner is asked to opine whether it is at least as likely as not (meaning likelihood of at least 50%) that any current asthma condition had its onset in service, or is otherwise related to service. Review of the entire file is required; however, attention is invited to the service treatment records documenting treatment for possible exercise-induced asthma in April 1987. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 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. If the Veteran's asthma is found to have preexisted service, please ask the examiner to explain whether the Veteran's asthma a) clearly and unmistakably preexisted service, and b) clearly and unmistakably was NOT aggravated by service (permanently worsened beyond the natural progression of the disease). 6. After the development in paragraphs (1) to (4) has been completed, if any service treatment records from the Veteran's first period of service are obtained that reflect that she incurred a dental injury in service, schedule the Veteran for a VA dental examination to determine the current nature and the etiology of any residuals to a dental injury she alleges occurred in service to two teeth. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner is asked to opine whether it is at least as likely as not (meaning likelihood of at least 50%) that the Veteran has any residuals of a dental injury incurred in service. Please note that the Veteran served during her second period of active duty as a dental specialist (whereas her injury was allegedly during her first period of service). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 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. 7. Then, readjudicate the Veteran's claims. If the claims remain denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and her representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ BETHANY L. BUCK 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) (2013).