Citation Nr: 1633875 Decision Date: 08/26/16 Archive Date: 08/31/16 DOCKET NO. 11-25 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty in the Air Force from May 1951 to May 1961. This appeal to the Board of Veterans' Appeals (Board) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified before the undersigned at a Travel Board hearing; a transcript of this hearing is of record. The claim was remanded by the Board in January 2015 and August 2015 for additional development. In the most recent remand, the Board instructed the RO to issue a statement of the case (SOC) in response to a notice of disagreement the Veteran submitted following the denial of an increased rating for post-traumatic headaches. In a March 2016 rating decision, the RO granted a 30 percent rating for the Veteran's headaches. Since this is the percentage the Veteran requested in his notice of disagreement, the RO considered the award a full grant; therefore, an SOC was not issued. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2016, the Veteran's attorney submitted a statement to the effect that additional development is needed in light of the newly submitted evidence. The records from the Seattle VA Medical Center (VAMC) show that the Veteran participated in a study in the 1980s that involved his lung disorder. Records associated with the VAMC study are not associated with the records, and his attorney contends that these records may contain pertinent evidence as to the history of the Veteran's lung disorder and may even contradict evidence that he did not begin to have lung problems until 20 years after service. See Correspondence received in July 2016. Although the record indicates the Veteran received treatment at the Seattle VAMC beginning in 1979, only a few records of his treatment records from this facility have been associated with the claims file. In light of his attorney's contention and the fact that records generated by VA facilities are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file, these records must be obtained. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associated with the record, copies treatment records from the Seattle VAMC since 1979. If these records cannot be obtained then this should be documented in the record, and the Veteran and his attorney should be notified. 2. If after reviewing the records there is any indication that the history of the Veteran's lung problems predates what was previously shown in the record (1979), then obtain supplemental opinions as to each lung disorder on whether it is at least as likely as not related to service and the complaints and treatment noted therein. The clinician must adequately address the multiple complaints in service and provide an adequate rationale in support of the opinion. 3. After the requested development has been completed, the RO shall review and adjudicate the claim for service connection for a lung disorder, based on all the evidence of record and all governing legal authority, including any additional information obtained as a result of this remand. If the claim remains denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond before the appeal is returned to the Board. 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). _________________________________________________ MICHAEL A. HERMAN 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).