Citation Nr: 1808767 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-29 954 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include bronchial asthma. 2. Entitlement to service connection for a leg condition, to include peripheral vascular disease (PVD). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1953 to March 1955. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision in which the RO denied service connection for asthma and denied service connection for PVD, claimed as a left leg condition/swelling. In October 2012, the Veteran filed a notice of disagreement (NOD). In October 2012, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2012. Regarding characterization of the claims, the Board notes that the service connection claim for a respiratory disorder was adjudicated as one for asthma. However, VA treatment records reflect that the Veteran has a current diagnosis of bronchial asthma and allergic rhinitis. Additionally, the service connection claim for a leg condition was adjudicated as one for PVD. However, VA treatment records reflect that the Veteran has a diagnosis of bilateral leg edema and PVD. Thus, consistent with the current record, the Board has more generally characterized thse claims to encompass all respiratory and leg diagnoses of record. See Clemons v. Shinseki, 3 Vet. App. 1 (2009). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) processing systems. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017),. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further action on these claims, prior to appellant consideration, is warranted. The Veteran has current diagnoses of bronchial asthma and allergic rhinitis. He contends that his asthma began in service. Specifically, in a March 2010 statement, he reported that he was treated for his asthma at a Tortuguero "sick base" and Fort Brooke Hospital in Puerto Rico. It does not appear that medical records from either facility have been associated with the claims file (in either the VBMS or Legacy Content Manager file). While VA treatment records reflect a history of treatment for his respiratory conditions, these records only go as far back as 1971; 16 years after separation from service. Corroborating medical records or statements from individuals, such as fellow servicemen, confirming in-service treatment is not of record. Accordingly, a remand of this claim is necessary for the AOJ to ensure that all identified relevant records are associated with the claims file and made available for review by the Board, so that the Board's evaluation of the Veteran's claim will be a fully informed one. See 38 U.S.C. § 5103A(b)(1) (2012) (setting forth VA's duty to obtain relevant records); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed.Cir.2010) (defining relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim"). As for the Veteran's claim for service connection for a leg condition, service treatment records reflect that the Veteran was treated for cellulitis without lymphangitis in his right leg. The Veteran contends that he has a current leg condition that is related in-service injury. VA treatment records reflect consistent complaint of and treatment for bilateral leg pain, swelling and PVD. Pursuant to VA's duty to assist a claimant in the development of facts pertinent to the claim, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c)(4) (2017). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159 (c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. To date, no VA examination has been conducted or a medical opinion obtained in conjunction with the service connection claim for a leg condition. As noted above, the Veteran has been diagnosed with PVD, and edema and leg pain have been noted;, STRs reflect treatment for a leg condition (cellulitis); and he has asserted the existence of a possible medical relationship between his leg condition and service. Given this evidence, and the absence of any medical opinion specifically addressing the etiology of any current leg condition, to include PVD, the Board finds that the threshold requirements discussed in Mclendon are arguably met with respect to the claim, warranting examination and appropriate medical opinion to fulfill VA's duty to assist. Id. Hence, the AOJ should arrange for the Veteran to undergo VA examination of his legs by an appropriate physician. The Veteran is hereby notified that failure to report to the scheduled examination without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2017). . Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record with respect to both claims is complete, in addition attempting to obtain the service treatment records noted above, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records of current evaluation and/or treatment of the Veteran ,to include VA treatment records from Mayaguez Outpatient Clinic VA Caribbean Healthcare System in Puerto Rico, dated since September 2010. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b) (2012); but see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted (to include arranging for an examination or otherwise obtaining a medical opinion in connection with the respiratory disability claim, if appropriate) prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Undertake appropriate action, to include direct contact with the Camp Tortugeur Hospital or Clinic (described as "sick base") and Fort Brooke Hospital in Puerto Rico, to obtain any service treatment records pertaining to the Veteran.. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Obtain from Mayaguez Outpatient Clinic-VA Caribbean Healthcare System in Puerto Rico all outstanding, pertinent records of evaluation and/or treatment of the Veteran since September 2010. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 3. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) treatment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 4. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5 After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo VA leg examination by an appropriate physician. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager}), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report must include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include x-rays) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all leg disability(ies) currently present, or present at any time pertinent to the current claim-to include PVD and disability manifested by edema and/or leg pain (even if now asymptomatic or resolved). Notably, if the physician determines that no current leg disability(ies) is/are present, he or she should clearly so state, and explain why, reconciling .such conclusion with the r prior assessments of PVD, edema and leg pain. If any current leg disability(ies) is/are diagnosed, then, for each such diagnosed disability, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) had its onset during service; or (b) is otherwise medically related to the Veteran's military service, to include injury and/or cellulitis therein . In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence of record (to include the October 1953 in-service treatment record for cellulitis); as well as all lay evidence of record, to include the Veteran's competent assertions as to experiencing injury, and as to the nature, onset, and continuity of symptoms. Notably, the absence of documented evidence of associated symptoms shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically be acknowledged and considered in formulating opinions. If lay assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted(to include arranging for an examination or otherwise obtaining a medical opinion in connection with the respiratory disability claim, if appropriate), adjudicate the claims on appeal. The claims should be adjudicated light of in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication), and legal authority. 7. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).