Citation Nr: 1335407 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-10 357 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a pulmonary/respiratory disability claimed as a lung disorder. 2. Entitlement to service connection for a bilateral ear disorder. REPRESENTATION Appellant represented by: Jaya A. Shurtliff, Attorney ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from May 1965 through July 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2010 rating decision in which the RO in Buffalo, New York denied service connection for a lung disorder and a bilateral ear disorder. In July 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2011. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. An August 2011 letter informed him that his hearing was scheduled for October 2011. However, in correspondence received in August 2011, the Veteran cancelled his hearing request. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless folder associated with the Veteran's claim. A review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2013). The threshold for determining whether the evidence 'indicates' that there 'may' be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83 In this case, the Veteran's service treatment records show that he was hospitalized on several occasions due to lung problems. Specifically, he was hospitalized from November 1965 to January 1966 for pneumonia. A June 1966 Medical Board report shows that the Veteran had been diagnosed with polyserositis (etiology undetermined), sinusitis, and erythema multiforme. He was placed on six months of limited duty, to include no strenuous exercise. He was hospitalized again in January 1967 with a diagnosis of polyserositis. His diagnosis was subsequently changed to collagen disease, manifested by multisystem disease (erythema, multiforme, arthralgia, and wheezing) as well as sinusitis. A May 1967 Medical Board report shows that the Veteran was found to be unfit for duty due to his medical condition and he was discharged from military service in July 1967. The Veteran filed a claim seeking service connection for a lung disorder and a bilateral ear disorder in July 2009. Thereafter, the RO obtained VA outpatient treatment records dated from July 2009 through November 2010. Significantly, these records show that the Veteran has been diagnosed with bacterial pneumonia, chronic obstructive pulmonary disease (COPD), environmental allergies, and impacted cerumen. The Veteran was scheduled for a VA respiratory examination in April 2010. However, it was noted that the Veteran reported late to this examination which did not allow sufficient time for the examination. In addition, it was noted that pulmonary function tests (PFTs) could not be performed as the Veteran used an inhaler prior to arrival and was completing a course of antibiotic therapy for acute respiratory tract infection. Thus, it was noted that the examination and PFTs needed to be rescheduled. The Veteran was never scheduled for a new respiratory examination and has never been scheduled for an ear examination. The Veteran's service treatment records showing treatment for polyserositis, collagen disease, and sinusitis during service, taken together with the VA treatment records showing current bacterial pneumonia, COPD, environmental allergies, and impacted cerumen, suggest that Veteran may have current pulmonary/respiratory and/or a bilateral ear disorder related to service. However, the record includes no actual opinion addressing the medical relationship, if any, between any such current disorders and service. Under these circumstances, the Board finds that examination to obtain a medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the claim for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, supra. Accordingly, the RO should arrange for the Veteran to undergo VA ear and pulmonary/respiratory examinations, by appropriate professionals, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of the claim(s) for service connection 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes outpatient treatment records from the Syracuse VA Medical Center (VAMC); however, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Syracuse VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since November 2010, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent outstanding, private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Syracuse VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since November 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA pulmonary/respiratory examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, and any relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current pulmonary or respiratory disability(ies), to include bacterial pneumonia, COPD, and/or environmental allergies. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service-to include the assessments of polyserositis and collagen disease in service. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. Also after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo ear, nose, and throat (ENT) examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, and any relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should identify all current disability/ies affecting the ears, to include previously assessed impacted cerumen. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service-to include the assessment of sinusitis in service. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). (CONTINUED ON THE NEXT PAGE) This REMAND 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).