Citation Nr: 1749059 Decision Date: 10/31/17 Archive Date: 11/06/17 DOCKET NO. 11-33 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include as due to undiagnosed illness. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a right leg disability. 4. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to November 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Albuquerque, New Mexico Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction currently resides at the VA RO in Winston-Salem, North Carolina. The Veteran was scheduled to appear at the RO to have a hearing before a Veterans Law Judge. The Veteran failed to report for the hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2016). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a statement dated October 2014, C.B., an attorney, reported that he represented the Veteran in a claim for Social Security Administration (SSA) disability benefits. There is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran's claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file. Therefore, on remand, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The Board additionally notes that with respect to the Veteran's claim of entitlement to service connection for a respiratory disability, the Veteran contends that he has a respiratory disability related to service, to include exposure to burning tires during his service in Saudi Arabia. With regard to the Veteran's contention that he was exposed to burning tires during his service in Saudi Arabia, the Board notes that his service personnel records confirm his service in Saudi Arabia. The Veteran was afforded a VA examination for his respiratory disorder in July 2010. After examination of the Veteran and consideration of his medical history, the VA examiner declined to diagnose the Veteran with a respiratory disorder. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In this case, although a respiratory disorder was not rendered during the July 2010 VA examination, the Board observes that the presence of a respiratory disorder has been noted during the appeals period. Specifically, A.W., D.O., a private physician, noted in a letter dated October 2014 that the Veteran is currently treated for chronic lung disease and has a mixed pathology including restrictive airway disease and obstructive airway disease. Although Dr. A.W. opined that the Veteran's current respiratory disorder started during his exposure to gases during service, part of his rationale was based on his finding that the Veteran never had a smoking history. Pertinently, however, the Veteran reported during the July 2010 VA examination that he smoked 10 cigarettes every day for 20 years. The Board is of the opinion that a clarifying medical opinion would be probative in ascertaining whether the Veteran's diagnosed respiratory disorder is related to his service. See 38 C.F.R. § 3.159(c)(4) (2016) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Request the SSA to provide copies of any records pertaining to the Veteran's application for SSA disability benefits, in any, to include any medical records obtained in connection with the application. Any materials obtained should be associated with the Veteran's VA claims folder. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Contact Dr. A.W. and request copies of all testing that establish the presence of obstructive and restrictive disease. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory disorder. The claims file, and any pertinent records contained in the Virtual VA and VBMS eFolders, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and the examination, the examiner is asked to render an opinion as to the following: a. Whether the Veteran currently has a respiratory disorder. In determining such, the examiner should address the private treatment letter from Dr. A.W. noting the Veteran has been treated for chronic lung disease and has a mixed pathology including restrictive airway disease and obstructive airway disease. b. Whether the Veteran's respiratory disorder at least as likely as not (probability of 50 percent or more) related to his service, to include exposure to burning tires. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. 4. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 2014). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).