Citation Nr: 1754576 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-25 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for asthmatic bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1945 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran asserts that he began experiencing respiratory symptoms his first two weeks onboard ship during active duty. He testified that these symptoms continued and in December 1948, while in the Naval Reserves he was treated for a respiratory infection. However, a review of the Veteran's claims file does not find that his Reserve medical records have been obtained. Therefore, because his reserve records are potentially pertinent to his claim for service connection for asthmatic bronchitis, on remand, all corresponding records of his reserve service should be obtained. See generally, 38 C.F.R. § 3.159(c). The Veteran's verified service is active duty, with possible additional periods of ACDUTRA and INACDUTRA. With regards to ACDUTRA and INACDUTRA, service connection may be granted for a disability resulting from injury or disease incurred or aggravated during a period of ACDUTRA, or from an injury incurred or aggravated during a period of INACDUTRA. 38 U.S.C. § 101 (24), 106, 1110, 1131 (West 2012). Furthermore, the Veteran testified that he received treatment for his bronchitis at VA medical centers in Norfolk, Virginia and Buffalo, New York. These records are not in the Veteran's claim's file. It thus appears that there are outstanding and relevant VA records. Upon remand, any outstanding VA medical records should be sought. See 38 U.S.C. § 5103A(c) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Additionally, the Veteran has not been afforded a VA examination to determine the etiology of his bronchitis. After review of the claims file, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran's claim for service connection for asthmatic bronchitis. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is warranted in order to schedule the Veteran for an appropriate VA examination in accordance with McClendon. Accordingly, the case is REMANDED for the following actions: (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. Attempt to obtain any VA medical records not currently associated with the claims file, particularly records from the Norfolk, Virginia, VAMC from 1946 to 1954 and the Buffalo, New York, VAMC, beginning in 1954. Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Contact the appropriate U.S. Naval Reserve Records Depository and verify the dates and types of the Veteran's service in the Navy Reserve, including all periods of ACDUTRA or INACDUTRA. 3. Contact the U.S. Naval Human Resources Command and take all steps to obtain all of the Veteran's Reserve service treatment records. If no such records are located once all avenues are exhausted, a new formal finding of unavailability should be provided to the Veteran. 38 C.F.R. § 3.159(c)(2). 4. Thereafter, schedule the Veteran for a VA examination, with an appropriately qualified examiner, to determine the nature and etiology of his asthmatic bronchitis. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his/her report), and all clinical findings should be reported in detail. The examiner should state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's asthmatic bronchitis had its onset in or is otherwise related to active service, to include all verified periods of ACDUTRA. A complete rationale for all opinions must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The Veteran, as well as his representative, must be notified in writing at his correct, current address of record that he is being scheduled for an examination and of the potential consequences that may result from his failure to attend a VA examination pursuant to 38 C.F.R. § 3.655(b). The AOJ is specifically instructed to document such notification in the Veteran's claims file. 5. After ensuring compliance with the development requested above, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, 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). _________________________________________________ Lesley A. Rein 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) (2017).