Citation Nr: 1423232 Decision Date: 05/22/14 Archive Date: 05/29/14 DOCKET NO. 09-07 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for upper respiratory condition, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from March 1992 to October 1992 and in December 2003 and had additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In January 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The most recent VA treatment records in evidence are dated in June 2012. At the January 2014 hearing, the Veteran's representative indicated that the Veteran received VA treatment for his respiratory condition as recently as two to three months prior to the hearing. The Veteran's representative indicated that the Veteran would have been treated at the West Los Angeles VA Medical Center or the Sepulveda Ambulatory Care Center. VA has a duty to obtain relevant treatment records from VA facilities. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(2)(3) (2013). The Board also notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive 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). Accordingly, on remand, the AOJ should obtain the Veteran's outstanding VA treatment records from June 2012 to the present and associate them with the claims file. The Veteran also testified that he has received oxygen therapy at a hospital and a private urgent care facility. The Veteran should also be sent a letter requesting him to identify any relevant outstanding private treatment records pertaining to his claimed respiratory condition, and the AOJ should attempt to obtain any records identified by the Veteran. The Veteran had a VA examination in September 2013. The examiner opined that there was no diagnosis of a respiratory condition because there was no pathology to render a diagnosis. The examiner indicated that, although the Veteran reported the use of numerous asthma medications, records from the West Los Angeles VA did not show the dispensation or use of such medications. The examiner indicated that no diagnosis could be made given the absence of prescription medications. The examiner's opinion did not address service treatment records, which show that asthma medication was prescribed in December 2003. A December 2003 entry reflects that a physician prescribed Albuterol after the Veteran complained of protracted coughing and inhaling dust particles. A remand is warranted to obtain a supplemental opinion which addresses the service treatment records. Accordingly, the case is REMANDED for the following action: 1. The Veteran's outstanding VA treatment records from the West Los Angeles VA Medical Center, the Sepulveda Ambulatory Care Center and any other VA facility where the Veteran has been treated from June 2012 to the present should be obtained and associated with the claims file. 2. The Veteran should be sent a letter requesting that he identify any recent medical treatment he has received for a respiratory disorder and provide complete authorizations for such medical records. If the Veteran identifies additional records, the AOJ should take appropriate steps to obtain any treatment records not currently of record. All efforts to obtain these records must be documented in the claims file. 3. Return the claims file to the VA examiner who conducted the September 2013 VA examination for a supplemental medical opinion. If that examiner is no longer available, another examiner should be asked to review the claims file and answer the question posed, or if this examiner determines that another examination would be helpful, the Veteran should be scheduled for a new C&P examination. After a review of the entire claims file, including the service treatment records, the VA examiner should provide an opinion as to whether the Veteran has a current upper respiratory condition, and if so, whether it is at least as likely as not (50 percent or greater likelihood) related to service. In the opinion, the examiner should address the entry in the service treatment records in December 2003 which reflects that the Veteran reported complaints of inhaling dust particles and coughing and was treated with Albuterol. The VA examiner should provide a complete rationale for the opinion. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion without resort to speculation. 4. After the above development is completed, and any other development that may be warranted based on any additional evidence received, the AOJ should readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable 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 or 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. 2013). _________________________________________________ K. PARAKKAL 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).