Citation Nr: 1403696 Decision Date: 01/28/14 Archive Date: 02/10/14 DOCKET NO. 08-07 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for headaches, to include as secondary to the service-connected cervical strain. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for a bilateral hip condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served in the Army National Guard from 1986 through 2006, performed active duty for training (ACDUTRA) from July to December 1986 and had active military service from August 2003 to April 2004. During his service in the Army National Guard, he had numerous periods of ACDUTRA and inactive duty training (INACDUTRA) with Reserve components at various times. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied entitlement to service connection for headaches, sinusitis, asthma, and a bilateral hip condition. In January 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, to conduct further development, to include, having the Veteran clarify which period or periods of service or training likely caused which claimed disability or disabilities; obtaining all pertinent National Guard point summaries and other documents that tend to reveal the dates of all active duty for training and inactive duty training; and requesting that the RO clarify whether it has intended to grant service connection for headaches, secondary to cervical strain. A review of the record shows that in February 2012 the Veteran was contacted by phone and the necessary clarification was requested and provided, the Veteran's National Guard point summary and other documents revealing dates of ACDUTRA and INACDUTRA were obtained, and the RO obtained a medical opinion (a VA examination in February 2012) regarding whether the Veteran's headaches were related to his service-connected cervical disability. Thus, there was substantial compliance with the January 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in a statement dated in March 2012, the Veteran asked what happened to his otitis media claim. Although this was set forth in the prior remand, the Board again notes that in pertinent part, the July 2007 RO rating decision also denied service connection for bilateral otitis externa. While the Veteran filed a timely notice of disagreement (NOD) with the denials of service connection for each of the four above mentioned disabilities, the NOD did not include bilateral otitis externa. Therefore, the Board lacks jurisdiction to address the otitis externa claim because the Veteran did not timely appeal that issue. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Competent medical evidence serves to establish that the Veteran's asthma was aggravated by his active military service. 2. The preponderance of the competent evidence of record is against a finding that the Veteran has sinusitis that had its onset during a period of active service or is otherwise related to active service. 3. The preponderance of the competent evidence of record is against a finding that the Veteran has a bilateral hip condition that had its onset during a period of active service or is otherwise related to active service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, asthma was aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Sinusitis was not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. A bilateral hip condition was not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2007 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board also notes that in the February 2007 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board notes that the Veteran was not scheduled for a VA examination to determine whether he has sinusitis that may be related to service. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of 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 the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post- service treatment for a condition or other possible association with military service. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for service connection for sinusitis, there is no competent medical evidence of a current disability. Although the Veteran contended he has sinusitis that had an onset during a period of active service, and at his post-deployment examination in March 2004, he indicated he had a chronic cough and runny nose during that deployment, his lay statements alone are not competent evidence to support a finding on a medical question (such as diagnosis or etiology) requiring special experience or special knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The RO has obtained all identified and available service and post-service treatment records for the Veteran. Further, he underwent a VA examination in May 2007 in conjunction with his claim for service connection for bilateral hip condition. The May 2007 VA examination included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. The May 2007 VA examination report is therefore adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. II. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Active military service includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease/ injury. Hickson v. West, 12 Vet. App. 247 (1999). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. In order to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the government (VA) must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is treated as an ordinary claim for service connection, meaning that if service connection is established there is no deduction for any pre-existing portion of the disability. Wagner, supra. III. Factual Background and Analysis 1. Asthma The Veteran essentially contends that his asthma increased in severity during a period of active military service, in Bosnia, in 2003-2004. The Board notes that an important presumption must be considered in connection with this claim. The presumption of aggravation arises where a Veteran enters active military service with a pre-existing medical condition. Where there is a pre-existing disability, the presumption of aggravation during active military service arises; it does not require that the evidence first show an increase in disability. Cotant v. Principi, 17 Vet. App. 116 (2003). Clear and unmistakable evidence is required to rebut the presumption of aggravation. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Service treatment records (STRs) do not contain a copy of a service entrance examination per se, however, the Veteran underwent a pre deployment health assessment on August 14, 2003, at which he reported his health was very good and he had no medical problems. He responded "yes" to the question of whether he was currently on a profile, or light duty, or was undergoing a medical board. Thus, the Veteran is presumed to have been sound upon service entry. 38 U.S.C.A. §§ 1111, 1132, 1137; Doran v. Brown, 6 Vet. App. 283, 286 (1994). As noted above, however, the presumption of soundness can be rebutted by clear and unmistakable evidence that such a disability existed prior to service and was not aggravated by service. See Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The U.S. Court of Appeals for Veterans Claims (Court) held that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111 where a condition is not noted at service entry, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, supra. The Veteran's STRs include an August 1988 note of exertional asthma. An August 1995 DA Form 2173, Statement of Medical Examination and Duty Status, states that exercise-induced asthma was not incurred in the line of duty and that it had existed prior to service. A February 1996 periodic National Guard physical examination report reflects that all relevant symptoms were normal, although the report notes that exercise asthma was worsening and that the case would be referred to a medical review board. In April 1996, a Medical Duty Review Board met to review the Veteran's medical record and the recommendation was no further action required. A July 1996 physical profile shows that the Veteran was placed on a permanent profile for exercised induced asthma. A January 1999 periodic National Guard medical examination report notes exercise-induced asthma. Thus, his STRs do include several medical examinations conducted during his National Guard duty, and these documents show he had asthma prior to his period of active duty service from August 2003 to April 2004, as well as a permanent profile for asthma. Thus, a pre-existing disability of asthma having been established, the next step of the inquiry is to determine whether the Veteran's pre-existing asthma was aggravated during his period of active duty service from August 2003 to April 2004. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. VAOPGCPREC 3-2003 (July 16, 2003); 69 Fed. Reg. 25,178 (2004). With regard to the Veteran's active service from August 2003 to April 2004, the Board notes that there is no separation examination in the STRs, but on a report of medical assessment (DD Form 2697) dated March 10, 2004, the Veteran indicated that his overall health was the "same" compared to his last medical assessment. Further, a post-deployment health assessment questionnaire (DD Form 2796) dated March 10, 2004 notes that the Veteran had deployed to Bosnia in September 2003 and returned home in March 2004. In the questionnaire, the Veteran checked "yes" to having had a chronic cough during this deployment, but checked "no" to having experienced difficulty breathing at any time during the deployment. In the health care provider portion of DD Form 2796, the provider noted that the Veteran was on a profile for asthma, that there were exposure concerns during deployment of an environmental nature, and that while deployed the Veteran was often exposed to smoke from burning trash or feces, and sometimes exposed to vehicle or truck exhaust fumes, as well as exposed to industrial pollution. Thereafter, a May 2005 physical profile form reflects that a military medical officer had determined that the Veteran did not meet military retention standards due to his asthma and inability to run two miles. On a report of medical examination dated in May 2005, it was noted that the Veteran had exercise-induced asthma that was progressively worsening, and that he had constriction of the throat but had not used an inhaler for two years and had not needed it. In August 2005 the Minnesota Army National Guard MMRB (Medical Retention Board) determined that due to his asthma, the Veteran was not eligible for retention in the Minnesota ARNG. Thereafter, he was honorably discharged and transferred to the Retired Reserve in April 2006. Thus, on the matter of aggravation, the Board finds that the second prong of the analysis is not met as there is no evidence of record showing that the Veteran's asthma was not aggravated by service. Instead, the evidence of record suggests that the Veteran's asthma worsened (was aggravated) during his period of active military service from August 2003 to April 2004, such that a little over a year later he was found to not meet military retention standards due to his asthma. The Veteran has also contended that his duty overseas in 2004 caused his asthma to increase in severity, claiming that exposure in Germany to asbestos and the oversea duty locations with poor air quality had resulted in his increased asthma symptoms, which required inhalers." The Board notes that the Veteran is competent to testify as to observable symptoms such as increased respiratory symptoms such as asthma. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Further, while a May 2007 VA examiner opined that it was at least as likely as not that the Veteran's current asthma was the asthma that caused his release from further military service, in an addendum also dated in May 2007, the examiner opined that asthma was not due to or caused by his military service, noting this was based on the time line and the diagnosis of asthma more than one year after his last period of active duty time. The Board notes that this more recent medical history relied on by the examiner is incorrect, as the Veteran's asthma was diagnosed in 1988 - after his period of ACDUTRA in 1986 and well before his period of active duty in 2003-2004. Considering these facts, the Board finds that the evidence suggests an increase in severity in the Veteran's asthma at some point between March 2003 and May 2005, such that he was found not eligible for retention in the Army National Guard.. The Board concludes that, based upon this evidence, that the Veteran's pre-existing asthma increased in severity during his period of active service, beyond the normal progression of the disorder. There is minimal evidence to the contrary. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for asthma is warranted on the basis of aggravation. 38 U.S.C.A. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.306. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). 2. Sinusitis In his September 2007 NOD, the Veteran pointed out that during duty in Bosnia he was exposed to industrial pollution. In a statement received in March 2008, the Veteran claimed that during his service in Germany in 1998, he stayed in barracks that had exposed asbestos, which increased his sinus problems, and that in Panama, Guatemala, and Bosnia they would burn a lot of trash, and he had significant exposure to this for long periods of time. He claimed that in Bosnia they flew a lot of Blackhawk missions where the vibration affected his sinuses. He contended that his sinusitis/allergy increase was managed with his asthma medication. In February 2012, the Veteran contended that sinusitis was caused by his service in Bosnia in September or October of 2003. A February 1996 private report from Allergy and Asthma Specialists, P.A., indicates that the Veteran had perennial allergic rhinitis. On a January 1999 report of medical history questionnaire, the Veteran checked "no" to a history of sinusitis. A January 1999 military medical examination report reflects that the sinuses were normal. A post-deployment health assessment questionnaire notes that the Veteran had deployed to Bosnia in September 2003 and returned home in March 2004. The questionnaire reflects that the Veteran checked "yes" having experienced a chronic cough and a runny nose during the deployment. On a May 2005 medical history questionnaire, the Veteran checked "no" to a history of sinusitis. A May 2007 VA orthopedic compensation examination report reflects that the frontal and maxillary sinuses were non-tender; however, the tonsils were "large." The record reflects that despite the Veteran's contentions and his reported exposure to smoke, fumes, and industrial pollution during his period of active duty service in 2003 - 2004, there has been no competent medical evidence showing that he has any current sinusitis. Thus, the threshold requirement for service connection to be granted - competent medical evidence of the current existence of the claimed disorder - has not been met. Brammer v. Derwinski, supra. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, sinusitis, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra. That is, although the Board readily acknowledges that Veteran is competent to report sinus symptoms, there is no indication that the Veteran is competent to diagnose sinusitis. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, this lay evidence does not constitute competent medical evidence. As the Veteran does not have sinusitis, service connection is not warranted. The preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for sinusitis must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Bilateral Hip Condition The Veteran essentially contends he has a bilateral hip condition related to service. In an original claim submitted in February 2006, he reported that a bilateral hip condition arose between 1986 and 2006. In a statement received in March 2008, he reported that while doing civil disturbance responses and drills he had hip pain, and also had pain and stiffness in the hips from having to drive for long periods in cars and sit for long periods in Blackhawk helicopters in Bosnia. In February 2012, he reported that his hip disability began while he was serving in Bosnia in February 2004, when he pulled another solider from a vehicle after a motor vehicle accident. February 1996 and January 1999 reports of medical history questionnaires ask for any history of arthritis, rheumatism, or bursitis, and swollen or painful joints. The Veteran checked "no" to each of these. The limbs were normal when examined in February 1996 and in January 1999. A post-deployment health assessment questionnaire notes that the Veteran had deployed to Bosnia in September 2003 and returned home in March 2004. The questionnaire reflects that the Veteran checked "no" having experienced swollen stiff, or painful joints at any time during the deployment. In May 2005, the Veteran completed a medical history questionnaire and checked "no" to a history of swollen or painful joints. The examiner noted possible Lyme's disease and bilateral hip pains. On a VA examination in May 2007, the Veteran reported his bilateral hip condition had an onset in the late 1980s, and that his hips were injured in service due to carrying heavy rucksacks and equipment, and running on uneven terrain for long distances. On examination, he reported that his hips became painful during certain activities. Hips X-rays showed minimal osteophytes of the acetabular, bilaterally, without joint space narrowing. The assessment was no pathological diagnosis of the right or left hip on physical examination. The examiner opined that there was no supporting evidence for a claim that the Veteran's bilateral hip complaints were service related, noting that the Veteran had not been seen for these conditions for 15 years and he was not even quite sure when, but thought it was the late 1980s. The examiner opined that it was less than 50% likely that the Veteran's bilateral hip condition complaints were service-connected or due to military service. With regard to current disability, the Board notes that, as set out above, on VA examination in 2007, x-rays showed minimal osteophytes, but the assessment was no pathological diagnosis of the hips on examination. In light of the x-ray finding, the record reflects that the Veteran arguably has a bilateral hip disability. In that regard, the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service treatment records (STRs) show that in May 2005, the Veteran had bilateral hips pains. What is missing from the record is competent evidence showing that the Veteran's current bilateral hip disorder may be causally related to his active military service. 38 C.F.R. § 3.303. On VA examination in 2007, the examiner rendered a negative opinion, opining that the Veteran's bilateral hip condition was less likely than not related to service. The Board finds that the physician's opinion in 2012, while brief, was based on a review of the record and is probative and persuasive on the issue of whether the Veteran has a current bilateral hip disorder that may be related to service. Further, the physician provided evidentiary support in the record for the opinion provided, and the Veteran has not submitted competent medical evidence to the contrary. The Board recognizes the Veteran has contended that his current bilateral hip symptoms and disorder are related to service, and that he has had hip symptoms since his period of active service in 2003-2004. As noted above, lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Likewise, the Veteran is competent to describe symptoms he has experienced - because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, supra. However, the Board does not believe that the etiology of hip symptoms is subject to lay diagnosis, and, as a lay person, the Veteran is not competent to report that he has a current hip disorder that is related to service. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Kahana v. Shinseki, supra. The preponderance of the evidence is therefore against the claim of service connection for a bilateral hip condition. Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for asthma on the basis of aggravation is granted. Service connection for sinusitis is denied. Service connection for a bilateral hip disorder is denied. REMAND The Veteran has contended that his headaches are related to his service-connected cervical strain. He has alternatively contended that his headaches are related to exposure to toxins in Bosnia and Germany. The Board notes that in February 2012, the examiner opined that the Veteran's headaches were less likely than not proximately due to or the result of his service-connected cervical condition. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). After reviewing the VA examination report from 2012, the Board concludes that such examination is inadequate and another is warranted. The Board acknowledges that the examiner specifically addressed whether the Veteran's headaches were related to or caused by cervical strain, but did not specifically address whether his headaches were aggravated or worsened by his cervical strain. A claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, based on the foregoing, the Board concludes that a medical opinion, on the question of whether the Veteran's asthma as likely as not aggravated by his service-connected cervical strain, is needed. Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Arrange for the examiner who provided the February 2012 examination report and opinion (regarding headaches) to review the Veteran's claims folder, and specifically note that such review has been accomplished. The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that the Veteran's asthma was aggravated by his cervical strain. The examiner must explain the rationale for any opinions given. If the examiner cannot answer the above question without resorting to mere speculation, the examiner should state why this is so. If the original VA examiner (from February 2012) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. 2. On completion of the foregoing, the claims should be re-adjudicated. If any aspect of the decision remains adverse to the Veteran, then provide her and her representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). ______________________________________________ Susan J. Janec Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs