Citation Nr: 1339251 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-39 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disability, to include tuberculosis, residuals of tuberculosis, and exercise-induced asthma. REPRESENTATION The Appellant is represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and [redacted], a Fellow Service Member ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Appellant had inactive duty training (IADT) from May 13, 1997 to August 9, 1997 and from May 28, 1998 to July 31, 1998, with additional subsequent service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Detroit, Michigan (RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Appellant if further action is required. REMAND The evidence of record includes two DD 214s demonstrating that the Appellant served on IADT from May 13, 1997 to August 9, 1997 and from May 28, 1998 to July 31, 1998. The evidence of record also includes a service memorandum wherein the Appellant was transferred to the Inactive Ready Reserve on June 1, 2003 and a certificate of Honorable Discharge on August 6, 2004. The evidence of record does not include service personnel records, or other documentation, verifying the periods of service between July 31, 1998 and June 1, 2003, including any periods of active duty, active duty for training, and/or inactive duty training. In March 2010, the RO submitted a request to the National Personnel Records Center (NPRC) for verification of the Appellant's unverified periods of service. In a March 2010 response, the request was "administratively closed" and, further, the requested was "rejected," both without further elaboration. Generally, VA has a duty to obtain all relevant federal records unless they are unobtainable or further efforts would be futile. 38 C.F.R. § 3.159(c)(2) (2013). There is no indication that VA undertook any additional efforts to verify the specific dates and types of service for the Appellant's additional periods of service. Moreover, there is no indication that the personnel records are unattainable or that additional searches for her personnel records would be futile. Id. As such, the Board finds that a remand is warranted in order for the VA to attempt to verify the Appellant's additional periods of service from July 31, 1998 to June 1, 2003, including periods of active duty, active duty for training, and inactive duty for training, and attempt to obtain her service personnel records. Additionally, during a May 2013 Board hearing, the Appellant indicated that she had been recently treated/evaluated by a private doctor (Dr. Wheeler) for the claimed disability. Although she was provided a 60-day period following the hearing to submit the records generated as a result of said treatment, and/or an etiological opinion, no such evidence was received by VA. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). VA has not attempted to obtain the Appellant's treatment records from Dr. Wheeler and, thus, the Board finds that a remand is warranted in order to obtain said records. Finally, the Appellant asserted during the May 2013 Board hearing that she first noticed respiratory symptoms in 1998 during a period of service. Service treatment records, dated June 27 and June 29, 1998, demonstrate that the Appellant complained of extensive sinus pressure, jaw line pressure, nausea, vomiting, headache, and pain on left side of her face, among other symptoms. On both occasions, the diagnosis was sinusitis. The evidence of record also includes current diagnoses of exercise-induced asthma and small vessel disease. Moreover, the Appellant and a fellow service member submitted statements and testimony that the Appellant experienced breathing problems during periods of service, which indicates an association between her current respiratory disability and her inservice symptoms. As such, the Board finds that a remand is warranted in order to afford the Appellant a VA examination. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Verify the specific dates and types of service for each of the Appellant's period(s) of service occurring from July 31, 1998 to June 1, 2003, including periods of active duty, active duty for training, and inactive duty training. 2. Contact the NPRC, or any other appropriate agency as necessary, to locate all of the Appellant's service personnel records and any outstanding service treatment records. Any records that are received should be associated with the claims folder. The Appellant and her representative must be notified of any inability to obtain the requested documents. 3. The Appellant then should be afforded a VA examination. The claims file must be made available to and reviewed by the examiner. All necessary and appropriate tests must be performed and their results documented. After examining the Appellant and reviewing the service and post-service treatment records, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any present respiratory disability, to include tuberculosis, residuals of tuberculosis, and exercise-induced asthma, was incurred in or due to any specific period of her military service. In rendering the etiological opinion, the examiner must address the Appellant's assertions and the evidence of record pertaining to a positive PPD test in October 2001. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions must be provided. 4. The RO must notify the Appellant that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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). 5. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Appellant and her 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). _________________________________________________ U. R. POWELL 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).