Citation Nr: 1804052 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-23 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to March 1992, and has been awarded a Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter the Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Legacy Content Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. Some relevant treatment records are located in the Legacy Content Manager, and all records are now in these electronic systems. The Veteran testified at a September 2017 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS file. During the September 2017 videoconference hearing, the Veteran and his representative requested waiver of initial review by the AOJ for further evidence submitted concerning this appeal. See 38 C.F.R. § 20.1304(c) (2017). In an October 1998 letter, the Veteran was informed that his claim of entitlement to service connection for asthma had been denied. He did not appeal this decision, and new and material evidence was not received, within one year of the notice of denial. Therefore, the October 1998 rating decision denying service connection asthma became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302, 20.1103. New and material evidence would ordinarily be required to reopen this claim under the circumstances described above. 38 U.S.C.A. § 5108. However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will adjudicate the claim without regard to the prior decision. 38 C.F.R. § 3.156(c)(1). In this case, as relevant service personnel records have been added to the record since the October 1998 decision, the Board will adjudicate the claim of service connection for asthma on a de novo basis, as indicated on the cover page above. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action, on his part, is required. REMAND The Veteran seeks entitlement to service connection for asthma and obstructive sleep apnea. After discharge from service in 1992 until 2002, the Veteran received VA treatment in New York, to include the Northport VAMC. Since 2002, the Veteran has received VA treatment in Alabama. According to the May 2014 statement of the case, the AOJ reviewed "treatment records, VAMC Northport, from September 6, 1995, through December 13, 2002" and "treatment records, VAMC Birmingham, from February 27, 2003, through May 8, 2014...." However, while the claims file contains some limited records of VA treatment in New York, it is not clear that all available VA treatment records prior to 2002 are part of the claims file. Additionally, the claims file only contains treatment records from VAMC Birmingham through May 2012. On remand, all available VA treatment records must be obtained and added to the claims file. The record also reflects there may be outstanding, relevant private medical records. In his September 2017 hearing testimony, the Veteran indicated that he visited private emergency rooms in the 1990s for breathing problems, including emergency rooms in Selden, Fort Jefferson, and Long Island. These records are relevant to the issues on appeal. On remand, the AOJ must attempt to obtain these outstanding private medical records. Additionally, VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). In this case, the Veteran served in Southeast Asia and was exposed to oil field fires, chemical agents, nerve agents, and other substances. See, e.g., September 2017 Hearing Testimony; November 2012 Persian Gulf Registry Code Sheet. Additionally, the Veteran has testified that symptoms of obstructive sleep apnea began during service and have continued since that time. On remand, AOJ must obtain a sleep study for the Veteran and a VA medical opinion regarding the nature and etiology of any diagnosed obstructive sleep apnea. In this case, the Veteran also has a diagnosis of asthma. See, e.g., May 1997 VA Treatment Records. As noted above, the Veteran served in Southeast Asia and was exposed to oil field fires, chemical agents, nerve agents, and other substances, and has testified that breathing problems began in service. On remand, the AOJ must obtain a medical opinion concerning the nature and etiology of the Veteran's asthma. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since May 2012. Additionally, obtain all available VA treatment records from New York, including VAMC Northport, from discharge from service in 1992 through December 2002. 2. With the help of the Veteran as necessary, attempt to obtain emergency room treatment records from the 1990s, including treatment at emergency rooms in Selden, Fort Jefferson, and Long Island. All attempts to obtain such records should be documented in the claims file. 3. After receipt of any outstanding evidence, but whether or not records are obtained, schedule the Veteran for a VA examination that includes a sleep study by an appropriate examiner to determine the nature and etiology of any diagnosed obstructive sleep apnea. The examiner must review the Veteran's Legacy Content Manager and VBMS files. The examiner should indicate in the opinion that all pertinent records were reviewed. All clinical findings must be reported in detail and correlated to a specific diagnosis. Following the examination, the examiner must opine as to whether it is at least as likely as not (50 percent or greater possibility) that any diagnosed sleep apnea had its onset in service or is etiologically related to or aggravated by service. The examiner must identify the criteria for diagnosing sleep apnea, and address whether the Veteran's testimony that he first experienced sleep disturbances during service, and continued to experience sleep disturbances after active duty service, is sufficient to identify the onset of sleep apnea in service. Additionally, the examiner should accept as true that the Veteran was exposed to chemicals and oil field fires while serving in Southeast Asia. See, e.g., September 2017 Hearing Testimony; November 2012 Persian Gulf Registry Code Sheet. A complete rationale must be provided for these opinions. 4. After receipt of any outstanding evidence, but whether or not records are obtained, forward the Veteran's claims file to a qualified examiner for an addendum opinion addressing the etiology of the Veteran's asthma. The examiner should opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's asthma had its onset in service or is otherwise related to service. In providing this opinion, the examiner must consider the Veteran's exposure to chemical agents and oil field fires while serving in Southeast Asia, and his credible testimony that breathing problems began while stationed in Southeast Asia. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he or she should 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), by a deficiency in the record (i.e., additional facts are required), or by the examiner himself or herself (because he or she does not have the needed knowledge or training). 5. After completing the actions detailed above, readjudicate the claims remaining on appeal. If the benefits are not granted to Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).