Citation Nr: 0003398 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 94-07 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE The veteran's dissatisfaction with the initial rating assigned following a grant of service connection for asthma. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from May 1986 to September 1991. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a March 1993 rating action of the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection and assigned a noncompensable disability evaluation for asthma. In July 1995, the veteran testified at a personal hearing before the undersigned Member of the Board sitting at the RO. A transcript of that hearing is associated with the record. As the appeal regarding the evaluation of the service- connected asthma involves an original claim, the Board has framed the issue as shown on the title page. See Fenderson v. West, 12 Vet. App. 119 (1999). REMAND The veteran contends that his service-connected asthma is more severe than the current rating indicates. The United States Court of Appeals for Veterans Claims (hereinafter, the Court) has held that, when a veteran claims a service- connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Inasmuch as the veteran has submitted a well- grounded claim, VA is obligated to assist him in the development of that claim. 38 U.S.C.A. § 5107(a) (West 1991). When the Board initially reviewed the veteran's claim in February 1996, it was noted that treatment records referred to by the veteran at the July 1995 hearing had not been obtained. The case was remanded in order to obtain those records and afford the veteran a VA examination. Following the Board remand, the claims folder was lost and a reconstructed claims folder was prepared. The reconstructed claims folder now contains copies of VA treatment records from January 1992 to February 1999, reports of VA examinations conducted in September 1996 and April 1999 and a transcript of the July 1995 hearing before the Board. Certain records which were noted by the Board in the February 1996 remand, however, are not represented in the current record. Specifically, the veteran's service medical records, a copy of the rating action on appeal, copies of any correspondence between the veteran and the RO, a copy of a September 1993 statement of the case (SOC) and a copy of a December 1991 VA examination are absent. When a veteran's records have been destroyed, VA also has an obligation to search for alternative records which support the appellant's case. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, pertinent records are unavailable and not presumed to have been destroyed, but are nonetheless not before the Board for review. Thus, the Board finds that further development is needed, specifically further augmentation of the claims folder, prior to appellate disposition. In that regard, the RO is instructed to contact the veteran for assistance in attempting further reconstruction. As noted by the RO in a May 1999 supplemental statement of the case (SSOC), the criteria for evaluating respiratory disorders were changed, effective October 7, 1996. The Court has held that "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant generally applies." White v. Derwinski, 1 Vet. App. 519, 521 (1991). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). When the RO readjudicates the veteran's claim for increase, it should again consider both sets of rating criteria. Finally, the Board observes that in the rating action presently on appeal, the RO granted service connection and assigned a noncompensable rating for asthma. The Court has made a distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection, and a claim for an increased rating of a service- connected condition. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-"staged" ratings. See Fenderson, supra. On remand, the RO should consider a staged rating and explain, with applicable effective date regulations, any change in the evaluations during the appeal period. Thus, to ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and ask his help in reconstructing the claims folder. Specifically, the veteran should be asked if he has copies of any service medical records, correspondence between himself and the RO (to include the September 1993 SOC), copies of the VA examinations or treatment records. Any records received from the veteran should be associated with the claims folder. 2. The RO should attempt to obtain copies of the December 1991 VA examination report, the transcript of the October 1991 RO hearing, and copies of any VA treatment records pertaining to the veteran's asthma dated prior to January 1992 and subsequent to February 19, 1999. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. Any necessary additional development, including the scheduling of a VA examination should be undertaken. If any development is incomplete, appropriate corrective action is to be taken. 4. Thereafter, the RO should again review the veteran's claim. That review should include considering the assignment of a staged rating for the service- connected asthma. Any staged rating should include the effective date regulations and an explanation of the reason for the effective date. In readjudicating the veteran's claim for increase, the RO should also consider both the old and new rating criteria and apply that most favorable to the veteran. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. BARBARA B. COPELAND 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).