Citation Nr: 1645317 Decision Date: 12/02/16 Archive Date: 12/19/16 DOCKET NO. 12-18 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for upper respiratory infections. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from June 2000 to August 2010. This matter comes to the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied service connection for an upper respiratory infection. The Veteran requested a Board hearing on his VA-Form 9, but later withdrew this request in November 2014, as noted on a Report of General Information. The Veteran's representative submitted an appellate brief in October 2016 noting that the issues on appeal were service connection for a right wrist condition and an upper respiratory infection; that the Veteran had not received a statement of the case; and that the Veteran had not had VA examinations pertaining to his appeal. Most of the Veteran's records pertaining to his file are in Virtual VA, rather than VBMS. The records in Virtual VA include a statement of the case that was issued in May 2012, a VA-Form 9 limiting the issues on appeal to service connection for upper respiratory infection in June 2012, and a pre-discharge VA examination that was provided in June 2010 addressing the claim on appeal. The issue of an increased rating for sleep apnea has been raised on a statement submitted on the VA-Form 9 in June 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for an upper respiratory infection. He underwent a VA examination in June 2010, in which the examiner noted that while the Veteran had a history of treatment in service for several upper respiratory infections, he did not presently have any pathology related to this condition. The Veteran submitted a statement on his VA-Form 9 in June 2012, however, that he had been treated for his upper respiratory infection since his separation from service at the VA hospital in Hampton. He also noted on an October 2014 Report of General Information that he had been seen by a doctor at the Hampton VAMC. These records should be obtained. The Veteran also should be provided with another examination to determine if he continues to suffer from chronic upper respiratory infections etiologically related to the ones he experienced during his military service. Accordingly, the case is REMANDED for the following action: 1. Make efforts to verify the Veteran's correct mailing address. Ensure that the Veteran and his representative have access to all pertinent records in the file, if so desired. 2. Obtain all relevant VA treatment records from the Hampton VAMC for the Veteran dated from August 2010 to the present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. 3. Ask the Veteran to identify any additional treatment records pertaining to the disability claimed on appeal. All efforts to obtain any additional records must be documented in the file. The AOJ should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If private records are identified, but not obtained, the AOJ must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 4. After the record development is completed, schedule the Veteran for a VA examination to address his upper respiratory infection. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has chronic upper respiratory infections. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service. The examiner is asked to discuss the clinical significance of the multiple occasions in service when the Veteran sought treatment for his upper respiratory infection and his statements on his VA examination in June 2010 concerning his symptoms of hemoptysis, cough with purulent sputum, and shortness of breath at rest. A complete rationale for any opinion offered should be provided. 5. After the development requested is completed, readjudicate the claim for service connection. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The Veteran 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). _________________________________________________ S. L. Kennedy 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).