Citation Nr: 1630934 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 10-21 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to an initial rating in excess of 50 percent for depression with anxiety. 3. Entitlement to an initial rating in excess of 30 percent for asthmatic bronchitis. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1956 to August 1960. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2008 and July 2009 rating decisions by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). The July 2008 rating decision, in part, granted service connection for depression with anxiety, rated 30 percent, effective June 27, 2007. The July 2009 rating decision implemented an April 2009 Board decision that granted service connection for asthmatic bronchitis, awarding a 30 percent rating, effective July 27, 2001, and also denied entitlement to service connection for a right hip disability. In October 2015, the Veteran withdrew his Board hearing request. 38 C.F.R. § 20.704(e). A September 2014 rating decision granted an increased (50 percent) rating for the Veteran's depression with anxiety, effective June 27, 2007 (i.e., throughout the entire appeal period). The Veteran has not expressed satisfaction with the increased disability rating. This matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). This case was previously before the Board in January 2016 when, in part, these matters were remanded for additional development. The January 2016 Board decision included the matters of entitlement to service connection for tinnitus and for bilateral hearing loss, which were remanded for additional development. In a May 2016 rating decision, the Veteran was granted service connection for tinnitus and bilateral hearing loss. The matters are therefore no longer on appeal, and will not be addressed further. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets additional delay in this case, the Board finds that additional development is necessary prior to adjudication of the claims on appeal. Regarding the claim for service connection for a right hip disability, on May 2016 VA examination, it was found that the Veteran does not have a current diagnosis associated with the right hip. However, the evidence of record includes July 2008 private treatment records that reveal a diagnosis of right leg greater trochanteric bursitis and an August 2009 private X-ray documenting a small area of sclerosis in the proximal right femur. The May 2016 examiner did not note or discuss this evidence. Based on the May 2016 examination, it is unclear if the Veteran has a right hip disability, and if so, whether such disability is related to service. Accordingly, a clarifying opinion must be obtained on remand. With respect to the increased rating claim for asthmatic bronchitis, the Veteran was last afforded a VA examination in June 2013. It was noted that the Veteran's asthma was controlled with a regimen of budesonide and formoterol daily, and albuterol as needed. The examiner further found that the Veteran's asthma did not require the use of oral or parenteral corticosteroid medications. Budesonide is defined as "an antiinflammatory glucocorticoid used by inhalation to treat asthma..." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 258 (32nd ed. 2012). In addition, budesonide is a medication belonging to a class of drugs known as corticosteroids. WebMD, http://www.webmd.com (last visited Aug. 2, 2016). Hence, it appears that the June 2013 examiner contradicted himself in the report. In addition, review of the evidence of record reveals significant evidence for treatment of the Veteran's asthmatic bronchitis with corticosteroids. See, e.g., February 2005 VA examination (noting present medications include beclomethasone inhaler); December 2008, March 2009, August 2009, December 2009, April 2011, June 2011, October 2011 private treatment records (listing current medications include a Qvar inhaler); August 2011, September, 2011, December 2012, January 2013, April 2013, December 2013 VA treatment records (listing active medications as budesonide, mometasone, prednisone, and Symbicort); see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 207 (32nd ed. 2012) (defining beclomethasone dipropionate as "a synthetic glucocorticoid"); Id. at 1568 (defining Qvar as a "trademark for preparations of beclomethasone dipropionate"); Id. at 1174 (defining mometasone furoate as "a synthetic corticosteroid"); Id. at 1508 (defining prednisolone as "a synthetic glucocorticoid"); Id. at 1814 (defining Symbicort as a "trademark for a combination preparation of budesonide and formoterol fumarate"). Accordingly, the Board finds that the Veteran should be provided with a new VA examination to determine the current severity of his service-connected asthmatic bronchitis. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Regarding the Veteran's claim for an increased rating for depression with anxiety, the Veteran reported increased depression in May 2016, suggesting a potential worsening of his disability since his last VA examination in June 2013. Accordingly, a contemporaneous examination is needed. Additionally, the Board remanded this matter in January 2016, in part, to obtain all mental health private treatment providers since March 2011, as the evidence of record indicated continued private medical treatment. See June 2013 VA mental disorders examination (noting the Veteran maintains regular contact with his psychiatric provider at Kaiser Permanente). In February 2016, the RO sent the Veteran a letter requesting that he identify all private treatment providers since March 2011. In a May 2016 Supplemental Statement of the Case (SSOC) notice response, the Veteran indicated he had no other information or evidence to submit. However, in May 2016, the Veteran reported that he has been receiving mental health care at Kaiser Permanente, and was now transferring all care to VA. Accordingly, as it appears there are outstanding private treatment records, a second attempt to obtain them should be made on remand. Finally, the Veteran's claims file should be updated to include relevant VA treatment records since May 2016. 38 U.S.C.A. § 5103A(c) ; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (holding that 38 C.F.R. § 3.159(c)(3) expanded VA's duty to assist to include obtaining VA medical records without consideration of their relevance). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims file VA treatment records dated since May 2016. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to include all records of psychiatric treatment from Kaiser Permanente dated since March 2011. 3. After the above development, obtain an addendum opinion from the May 2016 VA examiner (or other qualified examiner, if unavailable) as to the nature and etiology of the Veteran's right hip disability. The claims file should be made available to and reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner is asked to address the following: (a) Please reconcile your conclusion that the Veteran does not have a current right hip disability with the June 2008 private treatment records in the claims file documenting right leg greater trochanteric bursitis and the August 2009 private X-ray documenting a small area of sclerosis in the proximal right femur. Identify any right hip disability present since January 2009. (b) For any right hip disability present since January 2009, including bursitis, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in service or is otherwise the result of service, to include the July 1958 right groin strain. The examiner must provide a rationale for any and all opinions expressed, which should be set forth in a legible report. If an opinion cannot be rendered without resorting to speculation, that finding should be explained. 4. Schedule the Veteran for a VA respiratory examination. The claims file should be provided to and reviewed by the examiner. All indicated tests and studies, including pulmonary function tests, should be completed. The examiner should review the Veteran's prescribed medications and indicate which, if any, are oral inhalational or oral bronchodilator therapy, inhalational anti-inflammatory medication, systemic corticosteroids, or systemic high dose corticosteroids or immune-suppressive medications, and the frequency and duration of use. The frequency of the Veteran's physicians' visits for required care for exacerbations of asthmatic bronchitis and intermittent courses of systemic corticosteroids for asthmatic bronchitis should be noted. It should be noted whether the asthmatic bronchitis has resulted in episodes of respiratory failure, and if so, their frequency. A detailed rationale for any opinion expressed should be provided. If an opinion cannot be rendered without resort to speculation, that should be explained. 5. Schedule the Veteran for a VA examination to determine the current nature and severity of his depression with anxiety. The claims file must be made available to and reviewed by the examiner. All necessary tests should be conducted. The examiner should identify the nature, frequency, and severity of all current psychiatric symptoms, and specifically address the degree of social and occupational impairment caused by the Veteran's psychiatric disorder. A detailed rationale for any opinion expressed should be provided. If an opinion cannot be rendered without resort to speculation, that should be explained. 6. Then readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case and provide them an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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 2015). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2015).