Citation Nr: 0004252 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-12 503A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, variously claimed as bronchitis or emphysema. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The appellant served on active duty from May 1950 to January 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In October 1999, a Travel Board hearing was held at the RO before the undersigned Board Member. The undersigned Member was designated by the Chairman of the Board to conduct such a hearing. A transcript of the hearing testimony has been associated with the claims file. REMAND Notwithstanding the efforts undertaken by the RO to prepare the respiratory disorder claim for appellate review, the Board finds that a remand is in order for procedural purposes. The Board concludes that the appellant's application for benefits, as it stands currently, is incomplete and that the VA has a duty to inform him as to what is missing. See Robinette v. Brown, 8 Vet. App. 69 (1995) (where a claim is not well grounded, it is incomplete, and the VA is obligated under 38 U.S.C.A. § 5103 to advise the claimant of the evidence needed to complete his application). In the case at hand, the Board notes that the appellant has informed the VA, at his hearing, of the existence of evidence that may render the claim well grounded. See also Epps v. Brown, 9 Vet. App. 341, 344 (1996) ("The Robinette opinion held that 38 U.S.C.A. § 5103(a) imposes an obligation upon the Secretary to notify an individual of what is necessary to complete the application in the limited circumstances where there is an incomplete application which references other known and existing evidence.") Specifically, the Board notes that additional medical records, not currently associated with the record on appeal, may be pertinent to the proper adjudication of the appellant's claim for a respiratory disorder. Specifically, many of the appellant's service medical records, particularly those dating from October 1969 until January 1975, are not currently on file, and it is unclear while they are missing. Additionally, at his hearing in October 1999, the appellant testified that he was treated for his respiratory disorder immediately after separation from service by a private physician in Alaska while working for the Alaska Pipeline Company. The appellant also testified that he was treated for bronchitis and other lung problems shortly thereafter in Alabama, beginning in 1978. He also stated that he underwent a physical examination upon joining the Lloyd's Society in 1980 or 1981, at which time he recalls his disorder being noted. The appellant indicated that he is currently being treated by Dr. Rump. There is further indication that he may have received additional treatment, also not documented in the claims folder. Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. §§ 5103(a), 7104(a) (West 1991); see also Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under § 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). The § 5103(a) obligation is particularly applicable to records which are known to be in the possession of the Federal Government. See Counts v. Brown, 6 Vet. App. 473 (1994). Accordingly, this case is REMANDED to the RO for the following development: 1. The RO should inform the appellant of the importance of submitting complete, legible copies of any and all medical records which pertain to his claim, specifically any record of treatment following separation from active duty by physicians in Alaska and in Alabama; the results of his physical examination upon joining the Lloyd's Society; treatment records from Dr. Rump; and any other relevant records following service. To the extent that he desires VA assistance in attempting to obtain medical records from private sources, he should provide appropriate information and release forms so that the RO may so assist in completing the application. 2. The RO should again attempt to obtain copies of any additional service medical records not included in the claims folder, to include referrals to all potential custodians of his service records, including the National Personnel Records Center and the Army National Guard Personnel Center. If the appellant is aware of specific records that he thinks are missing, he should provide that information to the RO. If he has any service medical records in his possession, he should forward those records to the RO. All records received in response to the above inquiries should be associated with the claims folder. In the event that records are unavailable, this should be noted in writing in the claims folder. To the extent that there is an attempt to obtain records that is unsuccessful, the claims folder should contain documentation of the attempts made. The appellant and his representative should also be informed of any negative results. 38 C.F.R. § 3.159 (1999). 3. The appellant and his representative are further informed that they may submit any additional evidence or argument they desire on the issue at hand while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). 4. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268 (1998) (compliance with a Board directive is neither optional nor discretionary). Where the remand orders of the Board are not complied with, an error exists as a matter of law for failure to ensure compliance. 5. The RO should then readjudicate the instant claim, beginning with a determination as to whether the claim is well grounded. If the claim is determined to be not well grounded, the appellant should be so informed by supplemental statement of the case. If the RO determines that the appellant's claim is well grounded, the RO should then arrange for a VA respiratory examination of the appellant by appropriate personnel in order to evaluate the etiology of the appellant's respiratory disorder. The claims folder, including all in-service and post-service treatment records, should be made available to the examiner(s) prior to examination. The examiner(s) are requested to review the pertinent medical records, and provide a written opinion as to the presence, etiology and onset date of any respiratory disorder, if found. Specifically, the examiner(s) are requested to provide an opinion as to the medical probability that any documented respiratory disorder is related to an incident or incurrence in service. 6. If the aforementioned VA examination is completed, the RO should readjudicate the issue regarding entitlement to service connection for a respiratory disorder, with consideration given to all of the evidence of record, and any additional evidence obtained by the RO pursuant to this remand. In the event the benefits sought are not granted, the appellant and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, in accordance with applicable procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this claim. No action is required of the appellant until he is notified. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MICHAEL D. LYON Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).