Citation Nr: 1007373 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-06 636A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD) and a hiatal hernia. 4. Entitlement to service connection for a pulmonary disability, to include bronchitis. 5. Entitlement to service connection for chronic nasal allergies, to include sinusitis, and/or rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service June 1974 to June 1978, May 2001 to March 2002, and again from June 2005 to June 2007. He also had unverified periods of active and inactive duty for training from June 1968 to April 2001. These matters come to the Board of Veterans' Appeals (Board) on appeal from January 2004 and February 2008 rating decisions of the Des Moines, Iowa Regional Office (RO) of the Department of Veterans Affairs (VA). 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 record shows that, in addition to his three periods of active service, the Veteran served in the Reserves from June 1968 to April 2001. Further, his most recent DD Form 214 demonstrates that he served in the Naval Reserves and had 24 years, 6 months, and 28 days of prior inactive service. However, the record does not show that the specific dates and type of service (i.e. active duty for training or inactive duty training) have been verified. Verification of such information would be useful in the adjudication of the Veteran's claims. The Department of Veterans' Affairs must make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a)(West 2002); 38 C.F.R. § 3.159(c)(d) (2009). Such assistance shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(West 2002); 38 C.F.R. § 3.159(c)(4) (2009). 1. Back The Veteran asserts that service connection is warranted for a low back disability that occurred in August 1999 while he was serving in Key West, Florida on active duty for training. The record, including the Veteran's service treatment records, indeed show that he was involved in a car accident in August 1999 while serving on active duty for training and that he was diagnosed with and treated for an acute low back strain. An examiner noted that the Veteran had a prior history of mechanical low back pain. An April 1994 service treatment record in fact shows that the Veteran was diagnosed with mechanical low back strain. Service connection may be established for chronic disability due to "injury" incurred during a period of either active duty for training, or inactive duty training. 38 U.S.C.A. § 101(24) (West 2002). A June 2004 VA examination examiner's opinion, and the private opinion submitted by Dr. P. L., only address whether the Veteran's current low back disability is related to the documented August 1999 in-service accident. Neither opinion referenced the April 1994 symptomatology or commented on whether the Veteran's current disability is etiologically related to his April 1994 mechanical low back strain, and/or whether he had a pre-existing back condition at the time of his August 1999 car accident. 2. Bilateral Hearing Loss The Veteran asserts that service connection is warranted for bilateral hearing loss disability. The record demonstrates that the Veteran has current bilateral hearing loss "disability" for VA purposes. Service treatment records from the Veteran's second and third periods of active service show that the Veteran had bilateral hearing loss. However, service treatment records dated in 1993 and 1997 also show that the Veteran had bilateral hearing loss. As noted above, the Veteran's periods of active and inactive duty for training have not been verified and the Board is unable to ascertain from the record whether the 1993 and 1997 reports of hearing loss were made while the Veteran was on active or inactive duty for training. The Board observes that the Veteran underwent a VA audiological evaluation in April 2007, in which the examiner opined that the Veteran's hearing loss was not related to service. However, the Board observes that the examiner made such opinion without a review of the Veteran's service treatment records. Therefore, the Board finds that such VA opinion lacks probative value and is inadequate. Accordingly, the Board finds that a new VA examination and clinical opinion is necessary to determine the nature and etiology, to include aggravation, of any hearing loss demonstrated to have existed either during service or prior to service. 3. Gastrointestinal Disability, to include GERD and Hiatal Hernia The Veteran asserts that service connection is warranted for a gastrointestinal disability to include GERD and a hiatal hernia. The record demonstrates that the Veteran has a current GERD diagnosis. The Veteran's service treatment records also show that the Veteran was diagnosed with and treated for GERD and a hiatal hernia in 2006, during his second period of service. With respect to the etiology of the Veteran's GERD, a December 2007 VA examination report shows that the examiner indicated that such disability pre- existed the Veteran's third period of active service between June 2005 and June 2007, and that it was not permanently aggravated by service. However, in reviewing the evidence of record, there is no documentation that the Veteran experienced GERD prior to his being activated for service in 2005. Rather, the evidence consistently shows that the Veteran was first diagnosed and treated for GERD in 2006, during his third period of service. Therefore, the Board finds that the December 2007 VA opinion is inadequate because it is based in an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the Board finds that a new VA examination is warranted to determine the nature and etiology of the Veteran's gastrointestinal disability. 4. Chronic Nasal Allergies, to include Sinusitis and/or Rhinitis The Veteran asserts that service connection is warranted for nasal allergies. Post-service treatment records show that the Veteran has been diagnosed with sinusitis and allergic rhinitis. Service treatment records from the Veteran's 1974 to 1978 period of service show that on several occasions the Veteran complained of experiencing symptomatology, including sinus congestion, sinus drainage, and a sore throat, and that he was diagnosed with possible sinusitis. Service treatment records from the Veteran's June 2005 to June 2007 period of service also demonstrates that the Veteran was diagnosed with allergic rhinitis on several occasions. Service treatment records, including reports of medical history dated between 1981 and April 2001, also show that the Veteran was diagnosed with, and treated for allergic rhinitis and hay fever. The Board observes that the Veteran underwent a VA examination in December 2007 to determine the nature and etiology of his allergic rhinitis and sinusitis. With respect to the Veteran's sinusitis, the examiner indicated that the Veteran did not have a current sinusitis diagnosis. However, an April 2007 VA general examination shows that the examiner diagnosed the Veteran with sinusitis. With respect to the etiology of the Veteran's allergic rhinitis, the examiner opined that such condition pre-existed the Veteran's service and was not permanently aggravated by his service. However, although the examiner indicated that she had reviewed the Veteran's service treatment records, in rendering her opinion as to the etiology of the Veteran's disability, she failed to discuss the above mentioned symptomatology documented during the Veteran's June 1974 to June 1978 period of service. Accordingly, the Board finds that such examination is inadequate. Therefore, in light of the fact that a chronic nasal allergy, to include sinusitis and/or rhinitis, may have preexisted service, the Board finds that another VA examination and clinical opinion is necessary to determine the nature and etiology, to include aggravation, of any chronic nasal allergy demonstrated to have existed either during service or prior to service. 5. Pulmonary Disability, to include Bronchitis The Veteran asserts that service connection is warranted for a pulmonary disability, to include bronchitis. The record demonstrates that the Veteran has a current diagnosis of bronchitis. Service treatment records dated in May 2001 and between June 2005 and June 2007, during the Veteran's second and third periods of service, demonstrate that he was diagnosed with, and treated for, bronchitis. However, service treatment records dated in January 1995 also show that the Veteran was diagnosed with viral bronchitis and upper respiratory infection. Because the Veteran's periods of active and inactive duty for training have not been verified, the Board is unable to ascertain from the record whether the 1995 diagnosis of bronchitis was made while the Veteran was on active or inactive duty for training. Accordingly, a decision about the etiology of the Veteran's bronchitis, including whether or not it pre-existed service or was incurred in service, is not appropriate until completion of the action requested below. Accordingly, the case is REMANDED for the following action: 1. Obtain verification of the complete and specific dates, and type (i.e. active duty for training or inactive duty training), of the Veteran's Reserve service, to include from June 1968 to April 2001. 2. Contact the Veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for his low back disability, bilateral hearing loss disability, pulmonary disability, to include bronchitis, chronic nasal allergies, to include rhinitis, and sinusitis, and gastrointestinal disability, to include GERD and a hiatal hernia, prior to, and since, his discharge from service. After securing the necessary authorizations for release of this information, seek to obtain copies of all treatment records referred to by the Veteran, not already of record. 3. The Veteran should then be afforded a VA orthopedic examination to determine the nature and etiology of all current low back disability. The examiner should identify all low back disabilities found to be present. The examiner should then be requested to furnish an opinion concerning whether it is at least as likely as not that a preexisting back disability was aggravated by the Veteran's service in the military or, in the alternative, whether it is at least as likely as not that the Veteran's current low back disability is etiologically related to his service in the military, to include the documented in-service low back symptomatology, including in April 1994. The rationale for all opinions expressed should be set forth. All necessary tests should be performed. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior, and pursuant, to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. 4. The Veteran should be afforded a VA audiological examination to determine the nature and etiology of his current bilateral hearing loss disability. The examiner should be requested to furnish an opinion concerning whether it is at least as likely as not that a preexisting bilateral hearing loss disability was aggravated by the Veteran's service in the military or, in the alternative, whether it is at least as likely as not that the Veteran's current hearing loss disability is etiologically related to his service in the military, to include the documented in-service hearing loss. The rationale for all opinions expressed should be set forth. All necessary tests, including an audiological evaluation, should be performed. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior, and pursuant, to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. 5. The Veteran should then be afforded a VA gastrointestinal examination to determine the nature and etiology of his gastrointestinal disability. The examiner should identify all gastrointestinal disabilities found to be present. The examiner should be requested to furnish an opinion concerning whether it is at least as likely as not that the Veteran's current gastrointestinal disability is etiologically related to his service in the military, to include the documented in-service GERD and hiatal hernia symptomatology. The rationale for all opinions expressed should be set forth. All necessary tests should be performed. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior, and pursuant, to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. 6. The Veteran should be afforded a VA examination by the appropriate specialist to determine the nature and etiology of all current chronic nasal allergies, to include sinusitis and/or rhinitis. The examiner should identify all current chronic nasal allergies found to be present. The examiner should then be requested to furnish an opinion concerning whether it is at least as likely as not that a preexisting chronic nasal allergy was aggravated by the Veteran's service in the military or, in the alternative, whether it is at least as likely as not that a current chronic nasal allergy is etiologically related to his service in the military, to include the documented symptomatology in service, including from June 1974 to June 1978. The rationale for all opinions expressed should be set forth. All necessary tests should be performed. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior, and pursuant, to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. 7. The Veteran should be afforded a VA examination by the appropriate specialist to determine the nature and etiology of his pulmonary disability. The examiner should identify all pulmonary disabilities found to be present. The Veteran should then be afforded a VA examination by the appropriate specialist to determine the nature and etiology of his pulmonary disability. The examiner should be requested to furnish an opinion concerning whether it is at least as likely as not that a preexisting pulmonary disability was aggravated by the Veteran's service in the military or, in the alternative, whether it is at least as likely as not that the Veteran's current pulmonary disability is etiologically related to his service in the military, to include the documented in-service bronchitis symptomatology. The rationale for all opinions expressed should be set forth. All necessary tests should be performed. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior, and pursuant, to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. 8. Following completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ U. R. POWELL 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) (2009).