Citation Nr: 1410167 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-37 128 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as pneumonia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Ozger, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to October 1979. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2008 rating decision in which the RO denied service connection for pneumonia.. In February 2009, the Veteran filed a timely notice of disagreement (NOD). The RO issued a statement of the case (SOC) in July 2010. In response, the Veteran filed a substantive appeal (via two VA 9 Forms, Appeal to the Board of Veterans' Appeals). A review of the Veteran's paperless, electronic (Virtual VA) file reveals no additional documents relevant to the issue on appeal, except for an appellate brief filed by the Veteran's representative in January 2014. For reasons expressed below, the claim on appeal-expanded, as reflected on the title page and as discussed below-is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. Initially, the Board notes that, in the rating decision on appeal, the RO denied the claim on the basis that the Veteran has not been diagnosed with pneumonia. However, the record does document diagnosis of a respiratory disorder-specifically, allergic rhinitis-at a time frame pertinent to this appeal. See, e.g., September 2008 examination report. As such, the Board has expanded the claim on appeal, accordingly. This characterization appears to be more consistent with the Veteran's assertions that he had pneumonia in service and has had upper respiratory problems since then. See VA Form 9, received in August 2010. To avoid any prejudice to the Veteran, the RO should adjudicate the expanded claim on appeal, in the first instance. The Board also notes that the Veteran's statements suggest that there are outstanding records pertinent to this appeal. In the above-referenced VA Form 9, the Veteran also stated that he had walking pneumonia documented "in VA file between [1996-2000]." He also added that these records were being requested. Finally, the Veteran asserted that the VA has refused to supply the records. The Veteran also claimed that "between 1996-1999 [he] contracted walking pneumonia and was treated by the Orlando VA Med. Center." He added that he was told that he was susceptible to upper respiratory infections due to pneumonia and that he required flu shots and pneumonia shots every five years. The Veteran requested that the RO review the records between 1995-1999. The Veteran also identified records relating to asthma from Tampa VA, which allegedly show the use of an inhaler. Furthermore, in his NOD, the Veteran claimed that the VA is "giving [him] pneumonia shots every year." The claims file currently includes no records from the Orlando and Tampa VA Medical Centers (VAMCs), to include records documenting the pneumonia shots the Veteran claims to be receiving from the VA. There is also no indication that the RO requested outstanding records from either facility. 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, on remand, the RO should obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran from the Orlando and Tampa VAMCs since the Veteran's separation from service, following the current procedures prescribed in 38 C.F.R. § 3.159(c), as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, and the record is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim 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 also 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). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private records. The actions identified herein are consistent with the duties imposed by the Veterans Claim Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 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 (to include obtaining a medical opinion, if appropriate) prior to adjudicating the expanded claim on appeal. Accordingly, this matter is hereby REMANDED for the following actions: 1. Obtain from the Tampa and Orlando VAMCs all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since his separation from service. Follow the procedures set forth in 38 C.F.R. § 3.159(c) (2013) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on 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). y 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid a 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. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include obtaining a medical opinion, if appropriate), adjudicate the expanded claim on appeal in light of all evidence (to particularly include all that added to the record since the last adjudication of this claim) and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative 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). 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).