Citation Nr: 1754980 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-23 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty with the United States Marine Corps from February 1976 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction of the matter is now with the RO in Waco, Texas. In March 2017, the Board issued a decision that, in pertinent part, denied the Veteran's claim for service connection for asthma. The Veteran appealed the Board's decision of the service connection claim for asthma to the United States Court of Appeals for Veterans Claims (Court). In September 2017, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) and requested that the Court vacate the portion of the Board's decision that denied service connection for asthma. In a September 2017 Order, the Court vacated the Board's March 2017 decision of entitlement to service connection for asthma, and remanded the matter for further consideration and instructions consistent with the JMPR. The Board notes that in his substantive appeal, the Veteran requested a hearing. In March 2016, the Veteran's representative subsequently withdrew the request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. The Board further notes that prior to his current representation, the Veteran was represented by The American Legion. VA received a signed VA Form 21-22 in November 2015, changing representation from The American Legion to Attorney Virginia A. Girard-Brady. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Based on review of the claims folder, the Board finds that additional development is necessary prior to adjudication of the matter addressed in the Joint Motion. The basis for the Court's remand, as set out in the September 2017 JMPR, was that the Board erred by providing an inadequate statement of reasons or basis for finding that the Veteran's claimed condition of asthma was a preexisting condition. Specifically, the parties to the JMPR found that the Board did not rely on medical evidence in its finding that the Veteran's condition preexisted service. The record reflects that the Veteran was last afforded a VA examination for the claimed condition of asthma in May 2012. In light of the September 2017 JMPR and the passage of over five years since the Veteran's last evaluation, the Board finds that the Veteran should be scheduled for a new examination to determine whether there is clear and unmistakable evidence that the Veteran's condition preexisted service, and also whether the Veteran's condition was not aggravated while in service. In light of the concerns expressed in the Joint Motion, the Board finds that a remand is warranted to afford the Veteran an additional VA examination. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the etiology of his asthma disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current respiratory disabilities associated with the Veteran. (b) Determine whether there is clear and unmistakable evidence that the Veteran's asthma (or any other diagnosed respiratory condition) preexisted service. Note that "clear and unmistakable" evidence means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. (c) Regardless of the conclusion to subpart (b), determine whether there is clear and unmistakable evidence that the Veteran's asthma was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (d) If there is not clear and unmistakable evidence that the Veteran's asthma disability preexisted service and was not aggravated by service, then the Veteran must be considered to have been sound at entry, and based upon that premise, the question to answer would be whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's asthma disability had its onset in service or is otherwise related to service. In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran's statements regarding in-service injury associated with asthma, and all prior VA and private examinations. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 3. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded 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). _________________________________________________ B. MULLINS 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).