Citation Nr: 1641579 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 10-01 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 30 percent for asthma. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and her son ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from August 1978 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before a Veterans Law Judge at a Board hearing in December 2011. A transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). In a June 2016 letter, she was advised that the Veterans Law Judge who conducted her hearing was currently unavailable to participate in a decision in her appeal. In light of such, the letter offered the Veteran the option of requesting another hearing before a different Veterans Law Judge. However, she was further informed that, if she did not respond within 30 days, the Board will assume that she did not want another hearing and proceed accordingly. As the Veteran did not respond to the letter, the Board will assume that she did not desire another hearing. The Board remanded the claim for additional development in April 2012. In a November 2014 decision, the Board denied a rating in excess of 30 percent for asthma. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2016 Order, the Court granted the Veteran's, via her attorney, and the Secretary of VA's, via the Office of the General Counsel, Joint Motion for Remand. As such, the Board's November 2014 decision was vacated and the matter remanded for further consideration. The Board notes that a July 2015 rating decision denied service connection for posttraumatic stress disorder and other specified trauma/stressor disorder, which had previously been denied as entitlement to service connection for anxiety/depression. Thereafter, the Veteran entered a notice of disagreement as to the denial of such claims in later in July 2015. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the Agency of Original Jurisdiction (AOJ). As a result, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. In addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In March 2007 and May 2007 the AOJ requested treatment records from 2006 from Parkland Hospital, a private facility, in response to authorizations submitted by the Veteran. A response from Parkland Hospital was not received. In March 2013, the Veteran submitted an authorization for VA to obtain 1998 to 2004 treatment records from Parkland Hospital. The record indicates that in March 2013 and April 2013 the AOJ requested these records. In April 2013, the AOJ was notified by a representative from Parkland Hospital that the Veteran was seen from 2005 to 2006 and that records from January 2005 through June 2006 could be released based on another authorization that had been previously submitted. The record does not show that any records from Parkland Hospital were obtained or that further requests were made to obtain them. Furthermore, the Veteran was not advised of the inability to obtain such records. The duty to assist requires that VA assist the Veteran in obtaining these treatment records. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Furthermore, the Veteran must be notified if the AOJ is unable to obtain any records for which she submits the necessary authorization. See 38 C.F.R. § 3.159(e). Further, while on remand, the AOJ should provide the Veteran an opportunity to identify or submit any additional private treatment records, and obtain updated VA treatment records dated from July 2016 to the present. Subsequently, after obtaining any outstanding records, the AOJ should review the record and conduct any additionally indicated development, to include providing a contemporaneous VA examination if necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to specifically include those from Parkland Hospital and updated VA treatment records dated from July 2016 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding records, the AOJ should review the record and conduct any additionally indicated development, to include providing a contemporaneous VA examination if necessary to decide the claim. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).