Citation Nr: 0723216 Decision Date: 07/27/07 Archive Date: 08/06/07 DOCKET NO. 02-09 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from March 1952 to March 1954. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an April 2002 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board remanded the claim in August 2003 and September 2004 for further development. A personal hearing was held before a Veterans Law Judge in March 2004 who is no longer employed at the Board. A personal hearing was held before the undersigned Acting Veterans Law Judge in March 2007. This case was advanced on the docket, pursuant to 38 C.F.R. § 20.900(c) (2006). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran's separation examination, dated in March 1954, the only service medical record of record, was negative for any lung or chest condition, and a chest X-ray taken at that time was negative. In 1987, the veteran requested service connection for emphysema, among other conditions. The veteran drew a line through the space provided for listing treatment in service. The veteran noted treatment from several physicians in 1986 an 1987 in the space provided for listing treatment provided before, during, or after service. An October 1983 medical report diagnosed right upper lobe pneumonia and chronic obstructive lung disease. A Social Security Administration (SSA) disability determination noted that medical reports from October 1983 to January 1987 diagnosed severe emphysema. VA treatment records from 2000 note treatment for asthma. In statements and testimony, the veteran noted that he had breathing problems and allergies prior to service, but physicians did not diagnose a lung condition such as asthma. The physicians only told him to avoid certain allergens. In service, he stated that he had to go on sick call one to three times per month due to breathing problems. He also noted that he was never hospitalized, was only given aspirin, and medical personnel did not diagnose asthma. He stated that asthma was first diagnosed after separation from service in 1955. Where, as here, the service medical records are presumed lost or destroyed, through no fault of the veteran, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit of the doubt rule, is heightened. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This heightened duty includes the obligation to search for alternate medical records. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In an attempt to reconstruct the veteran's service medical records, the RO contacted the appropriate service department, and in July 2001, the response noted that additional records could not be obtained based on the information furnished. Another attempt to reconstruct the veteran service medical records by locating any unit sick call/morning reports, or Surgeon General's Office (SGO) records should be made. Accordingly, the case is REMANDED for the following action: 1. The veteran should again be advised that he should submit or identify any evidence he has or is aware of, especially evidence proximate to service (from 1954 to 1983), from either VA or non-VA (private) providers regarding any respiratory condition. The veteran should be again advised that evidence proximate to service would be the most persuasive evidence available. 2. The veteran should be afforded the opportunity to submit alternative evidence, to include buddy statements, photographs taken during service, letters written during service, or the like, and the veteran should be afforded the opportunity to identify any employment, insurance, or educational institution records, or any other records which might substantiate the veteran's contention he had a respiratory condition from separation from service in 1954 to 1983. 3. The RO should contact the veteran and request that he provide information regarding any instance in service when he reported to sick call for a respiratory condition. He should be informed that regarding each instance, he should provide the date, place, and his unit assignment. If additional information is provided, an attempt to reconstruct the veteran's service medical records from appropriate secondary sources (including sick/morning reports, and SGO reports) should be made. 4. The RO should readjudicate the veteran's claim. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board, if appropriate. The appellant has the right to submit additional evidence and argument on the matter 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 Supp. 2006). _________________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).