Citation Nr: 1546627 Decision Date: 11/04/15 Archive Date: 11/10/15 DOCKET NO. 10-37 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hyperglycemia. 3. Entitlement to service connection for a respiratory disorder, to include dyspnea and asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to March 1980, February 2005 to December 2005, and January 2006 to June 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned at a Board hearing in August 2014. A transcript of this hearing has been associated with the claims file. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The Board notes that the July 2010 statement of the case included the issue of entitlement to service connection for dyspnea (also claimed as shortness of breath). As reflected on the title page of this decision, the Board has recharacterized this issue to better reflect the Veteran's contentions and to fully encompass any diagnosis pertaining to the symptomatology claimed by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for a respiratory disorder, to include dyspnea and asthma, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the August 2014 Board hearing, the Veteran withdrew his appeals concerning the issues of entitlement to service connection for hypertension and hyperglycemia. CONCLUSION OF LAW The criteria for withdrawal of the substantive appeals on the issues of entitlement to service connection for hypertension and hyperglycemia have been met. 38 U.S.C.A. § 7105(b)(2) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION A substantive appeal may be withdrawn in writing, except for appeals withdrawn on the record at a hearing, at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by an authorized representative. 38 C.F.R. § 20.204(c). At the August 2014 Board hearing, the Veteran stated that he wished to withdraw the claims of entitlement to service connection for hypertension and hyperglycemia. Therefore, there remains no allegation of errors of fact or law for appellate consideration with regards to the matters remaining on appeal. Accordingly, the Board does not have jurisdiction to review the appeal of the issues pertaining to service connection for hypertension and hyperglycemia, and these claims must be dismissed. ORDER The appeal of the issue concerning entitlement to service connection for hypertension is dismissed. The appeal of the issue concerning entitlement to service connection for hyperglycemia is dismissed. REMAND The Veteran contends that he has asthma or other respiratory disorder characterized by attacks of shortness of breath which was incurred during his active duty service. After reviewing the evidence of record, the Board finds that the evidence is unclear both on the questions of whether the Veteran has a current diagnosis of a respiratory disorder and whether such a disorder was incurred during his active duty service. The Veteran's service treatment records show that in June 2002 he was examined for shortness of breath on exertion while in Saudi Arabia. In July 2002 he presented to the emergency room for dyspnea on occasion during the past 3 weeks. He was diagnosed with exertional dyspnea, and it was recommended that he receive follow up evaluation after he returned home. An August 2002 Physical Profile restricts the Veteran's prolonged exertion, running, and heat exposure. A November 2002 Line of Duty Determination recommendation from a Staff Judge Advocate recommends that the Veteran be found to have incurred asthma in the line of duty, as he had experienced shortness of breath in July 2002 and had been diagnosed with asthma. A November 2002 Line of Duty Determination found that the Veteran was treated for shortness of breath while under exertion in Saudi Arabia. A handwritten diagnosis of asthma was later added to the form. An October 2003 Memorandum from the Air Force Health Services Directorate found that shortness of breath was not a medical diagnosis, and that the Line of Duty Determination should be withdrawn. A recommendation of finding that the Veteran's condition existed prior to service was made by the Health Services Directorate in July 2004, and in August 2004, the Line of Duty Determination was reviewed and was found to be legally insufficient. The discussion accompanying the recommendation noted that there was no real evidence that the Veteran actually had asthma. A Memorandum was issued in October 2004 finding that the condition existed prior to service and a Line of Duty incurrence was not applicable. In June 2008 the Veteran was treated by private physician N.B. for shortness of breath and palpitations. He reported that he had similar episodes a few years back and was referred to cardiology, but findings were unremarkable. In a treatment record with Dr. S.S., the Veteran reported that the shortness of breath began while he was cutting grass, and for about 20 minutes he felt "as if he could not get enough 'air,' after which he developed palpitations." The doctor diagnosed the Veteran with shortness of breath, with etiology undetermined, noting it could be anginal equivalent, asthma, chronic obstructive pulmonary disease, obstructive sleep apnea, or other etiology. A June 2008 treatment record from private physician J.U. shows that the Veteran had been observed due to shortness of breath, but an echocardiogram was normal, and he was found to have "Dyspnea - resolved." In August 2008, he was seen for a follow up evaluation, and it was noted that he was now receiving treatment for sleep apnea and hypertension, and that he had not had any further symptoms. A September 2014 Disability Benefits Questionnaire from private physician Dr. L.W. noted that the Veteran had a diagnosis of asthma from 2008, but she also remarked that she had only treated the Veteran for sleep apnea. The Board therefore finds that a VA examination is necessary in order to determine whether the Veteran has a current diagnosis of asthma or any other respiratory disorder. The examiner must then review all of the medical evidence of record, specifically discussing the service treatment records and post service treatment records outlined above, and opine on whether the Veteran has a respiratory disorder that had its onset during or is otherwise related to his service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has indicated that he receives all of his medical treatment through private medical providers. These records were last obtained in August 2009. As there may be more recent treatment records which pertain to the issue on appeal, he should again be requested to provide authorization to enable VA to obtain these records and associate them with the claims file. Lastly, the Board notes that it is not clear that all of the Veteran's DD Forms 214 are currently of record, and while the Veteran has clearly served for many years in both the National Guard and the Air Force Reserve, the dates of the Veteran's periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) have not yet been verified. Such verification is relevant to a determination as to whether the claimed disability was incurred during a period of qualifying service. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's complete service personnel and treatment records, including copies of all of the Veteran's DD Forms 2014 and all National Guard and Air Force Reserve records. If any records requested cannot be located, issue a formal finding of unavailability and notify the Veteran that these records were not found. All efforts to locate such records must be documented and must continue until it is reasonably certain that such records do not exist and that further efforts to obtain those records would be futile. 2. Verify the periods of the Veteran's service in the Army Reserve and any periods of ACDUTRA and inactive duty training (INACDUTRA). Document for the claims file all actions taken and responses received. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any more recent, relevant private medical records of treatment related to a respiratory disorder. If the Veteran provides a completed release form authorizing VA to obtain these treatment records, efforts to obtain such records should be made. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any current respiratory disorder. Access to the Veteran's electronic files must be provided to the examiner, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. After reviewing the claims file and performing a physical examination of the Veteran and any indicated tests, the examiner must address the following: (a) Does the Veteran have a current diagnosis of any respiratory disorder? Please specifically address the medical records indicating that the Veteran has had occasional problems with shortness of breath. If no current diagnosis is found, please fully explain why the Veteran's symptoms do not support a finding of any diagnosis. (b) For every current respiratory disorder diagnosis found, is it at least as likely as not (a 50 percent probability or greater) that the disorder had its onset during service or was caused or otherwise related to any event in service? Please discuss the Veteran's service treatment records that show that he was first treated for shortness of breath in service in June 2002. (c) Is there clear and unmistakable evidence (such that reasonable minds could not differ) that any current respiratory disorder both preexisted service and was not aggravated during any period of active service? Please explain what evidence supports all conclusions made. A comprehensive explanation for any opinion offered must be provided, based on the specific facts of this case and any pertinent medical principles and evidence in the claims file. If the examiner is unable to answer the questions above, this must be stated and the reason(s) must be fully explained. The appellant must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2014). 5. Ensure that the 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. 6. Then readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration. 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 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). ______________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs