Citation Nr: 1521753 Decision Date: 05/21/15 Archive Date: 06/01/15 DOCKET NO. 12-04 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for asthma, to include as due to asbestos and other environmental exposures. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from August 1974 to August 1977, with additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta Georgia. The Veteran filed a notice of disagreement in February 2010 and was provided with a statement of the case in January 2012. The Veteran perfected his appeal with a February 2012 VA Form 9. The Veteran testified at a Board videoconference hearing in March 2015 and a copy of that transcript is of record. This claim was processed using the Veterans Benefits Management System (VBMS). A review of the Veteran's Virtual VA claims file reveals documents that are either duplicative or irrelevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his asthma was aggravated by his military service. Specifically, the Veteran has asserted that he was exposed to asbestos, JP5 fuels, gas, and cleaning solutions which aggravated his asthma. See Board Hearing transcript page 3. The Veteran's August 1974 enlistment report of medical history shows that the Veteran reported that he had asthma since childhood without problems since age 12. The Board notes that a veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b). In this case, the Veteran's August 1974 enlistment report of medical examination is absent of any notations of diseases or defects. Therefore, with respect to his period of active duty service, the presumption of soundness attaches and only clear and unmistakable evidence that demonstrates that the disability existed prior to service and was not aggravated by service may rebut the presumption. See 38 U.S.C.A. § 1111; Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (providing that the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service). As such, a remand is necessary to determine the nature and etiology of the Veteran's asthma. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran another opportunity to identify any pertinent private or VA treatment records for his claimed disabilities. The RO/AMC should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. Specifically, the RO should afford the Veteran the opportunity to submit records from his primary care provider, Dr. W. located in Florida. 2. Then, schedule the Veteran for a new VA examination to determine the nature and etiology of his asthma. The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. The examiner should address the following questions: (1) Is it clear and unmistakable (i.e., undebatable) that the Veteran's asthma existed prior to entry into active duty service in August 1974? (2) If the Veteran's asthma clearly and unmistakably existed prior to his entry into active duty, is it clear and unmistakable (i.e., undebatable) that the Veteran's pre-existing asthma WAS NOT aggravated beyond the natural progress of such a disorder by his active duty service? In answering this question: (i) Did the Veteran experience temporary or intermittent flare-ups of his asthma symptoms during active duty, based on a review of the Veteran's medical history before, during, and after his active duty service (from August 1974 to August 1977)? (ii) Did the Veteran develop a permanent worsening of the underlying pathology of his asthma as a result of his active duty service based on a review of the Veteran's medical history before, during, and after his active duty service (from August 1974 to August 1977)? If the answer is "yes", was the permanent worsening (i.e., aggravation) of the asthma due to the natural progress of that condition? (3) If asthma DID NOT clearly and unmistakably (i.e., undebatable) pre-exist service, is it at least as likely as not (50 percent probability or greater) that the currently diagnosed asthma is in anyway etiologically related to the Veteran's active military service? A fully articulated medical rationale for each opinion provided must be set forth in the medical report. The examiner must discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. After completing the above, and any additional development deemed necessary, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).