Citation Nr: 1642793 Decision Date: 11/08/16 Archive Date: 12/01/16 DOCKET NO. 11-24 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for respiratory disorders, to include asthma, rhinitis, bronchitis, and seasonal allergies. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from November 2006 to April 2007, April 2009 to May 2010, and August 2012 to August 2013. His military service has included service in support of Operation Enduring Freedom which included overseas service in Afghanistan. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. As reflected on the title page, the Board has combined, expanded, and reclassified the claim on appeal. This was accomplished for purposes of clarity. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Veteran contends that he developed a respiratory disorder (primarily asthma) during his periods of service, and specifically as a result of his exposure to biological hazards in Afghanistan. In the alternative, he argues that any preexisting respiratory condition that he had was aggravated during his periods of active service. He points out that he has had severe allergies and nose bleeds ever since his return from service. In his statements of record, the Veteran described inservice proximity to a burn pit/incinerator where chemicals, plastic, uniforms, and other wastes were disposed of. He believes this exposure caused him to develop respiratory disorders or exacerbate those that he might have already had. Of record is a Department of Defense Memorandum which reflects that when the Veteran was on active duty in 2009, his service included exposure to low levels of various materials, to include asbestos, lead, barium, and chromium. The service treatment records (STRs) from his second and third periods of active service include ongoing treatment for common colds, upper respiratory infections, seasonal allergies, and chronic allergic conjunctivitis. The post service treatment record reflects that the Veteran has been diagnosed with various respiratory disabilities, to include those listed on the title page. These records also include notation in October 2011 wherein the Veteran gave a childhood history of severe allergy problems with sneezing and a cough that would make him sick for 3-4 days. There were no hospitalizations for the condition. A July 2010 VA examination report is of record, but the Board does not find it adequate to evaluate the current claim for service connection. The claims file was not available for review at the time. Moreover, pertinent records dated subsequent to that exam have been added to the file. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his respiratory conditions, on appeal, to include any medical treatment received prior to service. With any necessary authorization from the Veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. 2. After allowing for a reasonable time to associate with the claims file the records noted above, schedule the Veteran for a VA examination by an appropriate medical professional. The entire record must be reviewed by the examiner. The examiner is asked to identify all respiratory disabilities present, and for each disability state whether such clearly and unmistakably (obviously or manifestly) preexisted active service. The examiner must then provide an opinion as to whether the Veteran's military service aggravated any preexisting condition found beyond the normal progression of the disease. For each respiratory condition identified that did not clearly and unmistakably preexist service, the examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such is related to the Veteran's periods of military service, or to any incident therein, to include his inservice exposure to environmental toxins generated by his proximity to burn pits at his station in Afghanistan in 2009. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the appeal. If any benefit sought remains denied, issue a supplemental statement of the case (SSOC) and return the case to the Board. 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). _________________________________________________ BARBARA B. COPELAND 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).