Citation Nr: 1610225 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 11-21 121A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for entitlement to service connection for asthma, and if so, whether service connection is warranted. 2. Entitlement to service connection for allergic rhinitis. 3. Entitlement to service connection for migraine headaches. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran had active service from February 1990 to February 1994. She served with the Naval Reserve from 1994 to March 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied the claims for service connection. The August 2009 decision reopened the claim for service connection for asthma and denied this claim on the merits. The Board is required to first consider whether new and material evidence has been presented before the merits of a claim can be considered; and the Board can make an initial determination as to whether evidence is "new and material." See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video teleconference. A complete hearing transcript has been associated with the file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In an October 2013 statement, the Veteran argued that that AOJ committed clear and unmistakable error (CUE) in the July 7, 2004 rating decision because the AOJ did not consider her ACDUTRA and INACDUTRA service when considering entitlement to service connection for asthma. The Board finds that the Veteran has raised a claim of CUE in the July 7, 2004 decision. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Review of the record reveals that the AOJ did not address the CUE issue. The Board finds that the Veteran's claim to reopen service connection for asthma is inextricably intertwined with the CUE claim. The Board finds that it would be inappropriate at this juncture to enter a final determination on the asthma claim until the CUE claim is adjudicated since the outcome of the CUE claim may have significant impact on the claim to reopen and service connection claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). The appropriate action is to refer the CUE claim to the AOJ for adjudication. The Veteran relates her disabilities for which she is seeking service connection to injuries and/or disability which she contends occurred during her Reserve service. In an August 2004 statement, the Veteran asserted that she incurred asthma during ACDUTRA during her six months of Physical Readiness Training. Naval Hospital records show treatment for acute and chronic asthma in March 7, 1999. At the videoconference hearing before the Board in October 2015, the Veteran asserted that she was on ACDUTRA in May 2008 when she sought medical treatment for a migraine headache. See the October 2015 Board Hearing Transcript, pages 10-11. The Veteran's periods of ACDUTRA and INACDUTRA have not been verified. Only service department records can establish if and when a person was serving on active duty, ACDUTRA, and/or INACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Thus, a remand is necessary to verify the Veteran's Reserve service including periods of ACDUTRA and INACDUTRA in 1998, 1999, and 2008. The Board also notes that in the August 2009 decision and in the subsequent statement of the case and supplemental statement of the case, the AOJ did not consider the theories of service connection based upon ACDUTRA or INACDUTRA service. The Board has a duty to consider all theories of entitlement to the benefits sought. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Thus, the Board finds that the AOJ should notify the Veteran of the pertinent law and regulations regarding service connection based upon ACDUTRA and INACDUTRA and readjudicate the claims for service connection and the claim to reopen considering of all appropriate legal theories of service connection relating to a period of active service, ACDUTRA, and INACDUTRA. Review of the record shows that the Veteran was afforded a VA respiratory examination in September 2014, following the issuance of the February 2013 Supplemental Statement of the Case, and prior to receipt of the appeal at the Board in September 2015. Under 38 C.F.R. § 19.31, a Supplemental Statement of the Case must be furnished to the Veteran when additional pertinent evidence is received by the AOJ after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal has been certified and transferred to the Board. As these requirements have not been satisfied, a remand is required in order to ensure due process to the Veteran. Lastly, the Board notes that at the October 2015 videoconference hearing before the Board, the Veteran stated that she received treatment for migraine headaches by Dr. Faulkner and she was currently treated for migraine headaches at VA in 2015. In a November 2009 statement, a VA doctor indicated that the Veteran had been treated at VA since 1999 for migraines, allergic rhinitis, and asthma/bronchitis. The AOJ should obtain copies of any outstanding treatment records from the VA Healthcare System dated since 2004. 38 U.S.C.A. § 5103A(b)(1). The AOJ should contact the Veteran by letter and request that she provide sufficient information, and if necessary authorization, to enable the AOJ to obtain any pertinent non-VA treatment records showing treatment of the claimed migraine headaches, asthma, and rhinitis including records from Dr. Faulkner. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claim of CUE in the July 7, 2004 rating decision (that was raised by the Veteran in an October 2013 statement). 2. Verify the Veteran's Reserve service including periods of ACDUTRA and INACDUTRA in 1998, 1999, and 2008. 3. Notify the Veteran of the pertinent law and regulations regarding service connection based upon ACDUTRA and INACDUTRA. 4. Obtain copies of any outstanding treatment records showing treatment of the claimed migraine headaches, asthma, and rhinitis from the VA Healthcare System dated since 2004. After contacting the Veteran and requesting sufficient information, and if necessary authorization, obtain any pertinent non-VA treatment records showing treatment of the claimed migraine headaches, asthma, and rhinitis including records from Dr. Faulkner. 5. Readjudicate the issues remaining on appeal in light of all of the evidence of record. Service connection based upon ACDUTRA or INACDUTRA service should be considered in addition to service connection based on any active duty service. If any benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case that addresses all pertinent evidence of record and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ MATTHEW W. BLACKWELDER 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) (2015).