Citation Nr: 1019331 Decision Date: 05/25/10 Archive Date: 06/09/10 DOCKET NO. 99-09 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an anxiety disorder. 2. Entitlement to service connection for bronchial asthma. 3. Entitlement to service connection for costrochondritis. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to a disability rating higher than 10 percent for residuals of a right ankle fracture. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD J.G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1981 and from January 1991 to October 1991. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In May 1999 the Veteran and his spouse testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. In February 2005 the Board affirmed the RO's denial of these claims. The appellant appealed this case to the U.S. Court of Appeals for Veterans Claims (Veterans Court). In September 2006, the Veterans Court granted a joint motion for remand of the Veteran and the Secretary of Veterans' Affairs (the Parties), vacated the February 2005 Board decision, and remanded the matter to the Board for compliance with the instructions in the joint motion. In July 2007 the Board remanded the matter to the RO for additional development. The case has been returned to the Board for appellate review. In an April 2010 writing, the Veteran's representative listed as one of the questions at issue "Entitlement to service connection for rhinitis." It is unclear to the Board whether he is raising a claim of entitlement to service connection for rhinitis. If he is, then, as there is no indication that the RO has adjudicated such a claim, the Board does not have jurisdiction to address the issue. Hence, the Board refers the matter of a possible claim for service connection to the RO for rhinitis for appropriate action. The issues of entitlement to service connection are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service connected residual right ankle fracture, claimed as right leg disability does not result in more than moderate limitation of motion of his right ankle and does not result in moderate or greater foot injury. CONCLUSION OF LAW The criteria for a rating higher than 10 percent disabling for residual right ankle fracture, claimed as right leg disability, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5271, 5284 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating Service connection was established for residuals of a right ankle fracture in a February 1998 rating decision and the RO assigned a noncompensable disability rating. In a September 2009 rating decision, the RO assigned a 10 percent disability rating, effective July 27, 1995, the date of the Veteran's claim for service connection for an ankle disability. This appeal arises from the decision in which the RO granted service connection and assigned an initial rating was assigned for the Veteran's ankle disability. In such cases the Board must consider whether different ratings are appropriate for different periods of time based on the facts found, a process known as "staging the ratings." Fenderson v. West, 12 Vet. App. 119 (1999). The RO has rated this disability under the criteria for limitation of motion of the ankle, found at 38 C.F.R. § 4.71a, Diagnostic Code 5271. Because there has been mention of related symptoms involving the calcaneus, the Board has also considered the criteria for other foot injuries. As to limitation of motion of the ankle, moderate limitation is rated 10 percent disabling and marked limitation is rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5271. As to foot injuries, moderate, moderately severe, and severe foot injuries are rated as 10, 20, and 30 percent disabling, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Normal range of motion of the ankle is from 0 to 20 degrees of dorsiflexion and from 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). During the 1999 DRO hearing, the Veteran testified that on days when the weather is bad his ankle hurts when he walks, that he has numbness in the leg, constant cramping, cannot control that part of his body, and can feel it up to the center of his back. Id. at 14. He also testified that if he were to try to support his weight on the right foot he would fall down. Id. at 15. Service treatment records do not provide any favorable evidence as to the rating to be assigned for the Veteran's service connected right ankle disability. Although he sprained his ankle during service and was placed in a cast for a period of time, as reflected in the service treatment records, at separation clinical evaluation of his lower extremities and feet were normal. Moreover, under the facts of this case, the severity of the Veteran's disability since he filed his claim for service connection in July 1995 is reflected in records from 1994 forward. Clinical findings noted in VA records from December 1994 to February 1995 include that the Veteran had full range of motion of his lower extremities, with no atrophies. He reported cramps in his right calf. An orthopedic consult report documents that he had tenderness of the lateral anterior right ankle but with full range of motion and no x- ray evidence of fracture This is evidence against assigning a rating higher than 10 percent for his right ankle disability because the evidence is not that of a moderate foot injury or of any limitation of motion of the ankle or of any pain on motion. In February 1996 VA first afforded the Veteran an examination of his ankle. He reported cramps in his right ankle as well as pain on squatting, running or jumping. X-rays from February and April 1995 were normal. There was no swelling or deformity of the Veteran's right ankle. Range of motion was 0 degrees of dorsiflexion and 30 degrees of plantar flexion. There was no crepitus. He could stand, squat, rise on his toes and heels, pronate and supinate - all without pain. There was no instability of the ankle. He had tenderness to palpation on the right ankle lateral malleolus and soft tissue swelling. He was diagnosed as having residual of a right ankle fracture. This is evidence against assigning a rating higher than 10 percent for his service connected right ankle disability. He was able to execute operations that would cause his ankle to go through significant motion without evidence of any pain. Taken together his 30 degrees of plantar flexion and 0 degrees of dorsiflexion is not motion so limited that the Board considers it to be more than moderate limitation of motion of the ankle. There is no evidence of even a moderate foot injury. In 1999 he again underwent VA examination of his ankle. This report also states that x-rays showed no bone or joint pathology but did show slight narrowing of the ankle mortise. The Veteran reported a history of pain, weakness, swelling, stiffness, heat, redness, instability or given way, locking, fatiguability, lack of endurance, etc. On the day of the examination the Veteran referred to moderate right ankle lateral aspect pain with radiation to the plantar aspect of the foot and the lower back. He also stated that he had occasional foot cramps. No flare-ups were noted. Physical examination revealed dorsiflexion to 10 degrees and plantar flexion to 45 degrees, with no pain on motion. With regard to objective evidence of lack of endurance, pain, fatigue, weakness, etc, the examiner stated that this was not applicable. Given that the Veteran had no pain on motion, the reasonable conclusion from the finding of lack of applicability is that he had none of the other factors listed either. These results are evidence against the Veteran's claim for a rating higher than 10 percent. His range of motion of the right ankle was even greater than previously measured and is not evidence of more than slight limitation of motion. The examiner specifically noted that there was no pain on motion and referred to fatigue, weakness, lack of endurance etc., thus taking into account the "DeLuca factors." Even considering application of 38 C.F.R. § 4.40 and § 4.45 - the "DeLuca" factors - these examination findings warrant no more than a 10 percent rating for moderate limitation of motion of his right ankle. The Veteran's report of pain radiating to other parts of his foot is not evidence of other than an ankle injury and is not evidence that any rating should be assigned for a foot injury. In August 2009, VA again afforded the Veteran an examination of his right ankle and foot. Subjective history provided by the Veteran was that he had pain, fatigability, and a giving way sensation, all worse on ambulation. He reported flare- ups of 3 to 4 times per month, lasting several hours and aggravated by prolonged standing and ambulation. He had no hospitalizations. The Veteran is able to ambulate for 30 minutes. Physical examination revealed tenderness and swelling of the lateral malleoli but no edema. He limped on his right foot, but there were no callosities indicative of abnormal weight bearing. He was diagnosed with a right foot strain of moderate severity with no evidence of fractures. As to the Veteran's ankle, the examiner noted that he had a sprain during service and no x-rays have ever shown a fracture. On examination he was found to have mediolateral instability of the ankle. There was no ankylosis. Range of motion of the right ankle was measured as 0 to 35 degrees of plantar flexion with pain over the last 10 degrees. The examiner stated that the Veteran had a functional loss of 10 degrees of plantar flexion due to pain. Dorsiflexion was measured as form 0 to 10 degrees with pain over 10 degrees. The examiner stated that functional loss of dorsiflexion due to pain was 0 degrees. The examiner thus provided specific findings with regard to DeLuca and those findings show that a rating higher than 10 percent is not warranted. X-rays of the right ankle showed no evidence of fracture or dislocation. There was a slight widening of the ankle mortise, medially. The examiner diagnosed right ankle strain with no evidence of fractures, of moderate severity. The examiner also stated that the Veteran likely has a ligament strain as evidenced by the widening of the ankle mortise seen on x-rays. Again, this is evidence against assigning a disability rating higher than 10 percent. There is no evidence that the Veteran has ever had an injury of his foot or anything other than soft tissue injuries of his ankle, whether strains or sprains. Hence, there is no evidence or basis for assigning a rating for a foot injury. His ankle disability results in no more than moderate limitation of motion. Even taking into account the DeLuca factors, which amount to limitation due to pain to no less than 0 to 25 degrees of plantar flexion and 0 to 10 degrees of dorsiflexion, the Veteran still retains nearly half of the normal range of motion. The examiner characterized the Veteran's disability as of moderate severity. Taking the comment of the examiner together with the findings on examination, the Board finds that the Veteran's service connected right ankle disability does not approximate marked limitation of motion. The Board has taken into account the Veteran's reports of flare-ups but these reports must be taken together with all of the evidence of record. The Veteran's reports of the severity of his disability have, over the years, been shown to be exaggerated. For example, in 1999 he testified that his ankle disability was so severe that he could not squat, yet, the evidence shows that he can do so. Taking all of the evidence of record together, the preponderance of evidence is against assigning higher than the 10 percent schedular rating already assigned for the Veteran's service connected right ankle disability. Also considered by the Board is whether referral for a rating outside of the schedule is warranted. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2009). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). That being said, the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). More recently, the Veterans Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Veterans Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the symptoms that the Veteran has described, along with the findings during examination reports, are addressed by criteria found in the rating schedule, including that found at 38 C.F.R. § 4.40 and § 4.45. The level of disability that he has been found to have from such symptoms is also covered by the schedule. There is thus no reason for the Board to go past the first step of the Thun analysis. Of note, is that even if the second step was considered, there are simply no related factors present in this case. There is no evidence of what could be construed as marked interference with employment, he has not had any hospitalizations, and there is no evidence of any other similar factors. Hence referral is not warranted. In summary, the preponderance of evidence of record is against assigning a disability rating higher than 10 percent for the Veteran's service connected ankle disability for any period of time or for referral for extraschedular consideration. Hence, his appeal as to this issue must be denied. The evidence as to this issue is not so evenly balanced so as to allow application of the benefit-of- the- doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). This notice must be provided prior to an initial unfavorable 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Veterans Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA sent letters to the Veteran in December 2001, March 2004, and July 2007 providing him with notice with regard to substantiating his claim. These letters included adequate notice as to the evidence necessary to substantiate these claims as well as the Veteran's and VA's duties in obtaining evidence. The 2007 letter provided more detailed notice and included an explanation of the evidence relevant to assignment of disability ratings and effective dates. Not all of this notice preceded the initial adjudication by the RO. Hence, there was a timing error in the notice. Since content complying notice was provided to the Veteran the RO readjudicated his claim in a September 2009 supplemental statement of the case. This readjudication, along with the meaningful opportunity that the Veteran has had to participate effectively in the development of his claim, has cured the timing defect. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Hence, the Veteran has not been prejudiced by any defect in notice and the Board need not delay adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (explaining the rule of prejudicial error in the context of VA benefits claims). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At this point the Board will also discuss the reasons for the remand from the Veterans Court in 2006 as stated in the joint motion. In the September 2006 joint motion, the Parties agreed that a remand was necessary for three reasons. First, so that VA could verify the Veteran's current address. A March 2007 Report of Contact shows that a VA employee called the Veteran's representative and the Veteran's representative provided the Veteran's current address. VA has complied with this action agreed upon by the Parties. Second, the Parties agreed that a remand was necessary so that VA could verify the Veteran's "additional Army Reserve duty upon return from the Persian Gulf War." 2006 Joint Motion at 3. The Parties stated as follows: The Parties note that the dates for Appellant's Army Reserve service are relevant because service connection may be established for an injury incurred during active duty training or from an injury incurred during inactive duty training. [citations omitted]. Appellant's Army Reserve service should be verified and his service medical records from this period of service should be obtained. Id. at 4. This basis stated in the joint motion is not applicable to the claim for an increased rating for the Veteran's ankle disability as service connection has already been established and there is sufficient evidence of record to rate the disability. The nature and extent of the disability at this time is at issue, not during the Veteran's service. Moreover, by both the statutory and regulatory language VA's duty to assist the Veteran in obtaining evidence applies only to relevant evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) rejected the argument that VA has a duty to obtain and review records held by a Federal department or agency in every case prior to determine if the records are relevant to the Veteran's claim. In the instant case, the Veteran has not asserted that he sought treatment for his ankle while with the Army Reserves after his separation from active service in 1991. He has identified all records of treatment for his ankle disability and did not identify records during his reserve duty. Therefore, the Board has no duty to obtain any records of medical treatment that may exist as far as his claim for a higher rating for his right ankle disability. The third reason stated in the joint motion for remand to the Board was a deficiency in the Board's statement of reasons and bases with regard to functional limitation due to pain as far as whether a compensable rating was warranted for the Veteran's service connected right lower extremity disability. The Board addressed that matter in the instant decision. After receiving the Veteran's current address in July 2007, the AMC sent a letter to the Veteran in July 2007 asking that him to either submit any medical reports he had with regard to his claims for benefits involving all of the disabilities on appeal or to identify the records, fill out the enclosed VA FORM 21-4142s, and submit the forms for VA to assist him in obtaining the evidence. In July 2008, and again in April 2009, the AMC sent letters to the Veteran asking him to complete the enclosed VA Form 21-4142 for VA to assist him in obtaining evidence from previously identified treatment providers. This corresponds to the actions requested in the remand that the Board issued in July 2003 these 2008 letters were sent to the address provided by the Veteran's representative. There is no evidence indicating that these letters were returned as undelivered or undeliverable. The Veteran did not respond by submission of any evidence or completed VA FORM 21-4142. VA has discharged its duty to assist the Veteran in obtaining those or any other records which are relevant to the issue decided today. VA afforded the Veteran adequate examinations in July 1999 and August 2009 with regard to his ankle disability. The Veteran has not authorized release of any other relevant evidence to VA and has not identified any relevant records in the possession of a Federal agency or department. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. 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, 16 Vet. App. 183 (2002). ORDER A rating higher than 10 percent disabling for the Veteran's right ankle disability is denied. REMAND Lumbar spine disability and costrochondritis During the June 1999 DRO hearing, the Veteran testified that while serving in the Persian Gulf he stepped on a fire hose, lost his balance, and fell, twisting his ankle. 1999 DRO Hearing Transcript at 12-13. He testified that he was taken to the hospital where his right ankle injury was diagnosed and that "after than, I started complaining also about the pain in my leg and my back, but, as I said before, my first and primary pain at that moment was the leg, which was where they [sic] pain was at its worst." Id. at 13. He went on to testify that he reinjured his ankle from a later fall, landing in a sitting position. Id. When asked where this happened he reported that it happened in Saudi Arabia. Id. He also referred to his claimed back disability as follows: My back condition, I did not identify it at first during the period in the Gulf, because, since I suffered from the condition that I suffer from in my leg, well, the pain was, was so continuous and constant in both places and the priority at the time was my ankle which was inflamed. Uh, after I came back to Puerto Rico, I started noticing that I was not able to, to do my functions, even run at the "P T' of the company that I was in, do the exercises, and I started noticing a deficiency in trying to keep my balance. Uh, during the fall which I suffered in, in the Gulf, uh, one of them was in a sitting position, uh, that fall made me, when I was here in Puerto Rico, suffer from transient paralyses that have lasted form one to 2 months without even being able to get out of bed. Id. at 9-10. He testified that these described symptoms led him to seek treatment from a private physician, and then from VA. Id. at 10. Following his representative's question as to whether he had any service in the National Guard or Reserves after his return from the Persian Gulf, the Veteran testified that he was in the Reserves company when he came back as "I was in charge of a platoon and I was in the process of, of receiving the equipment and all of that and my responsibility was to be there with them. Once my responsibility with them there was over, I was discharged from the service." Id. at 11. The Veteran was separated from active duty on October 19, 1991. Army Reserve personnel records show that he was discharged in August 1992. A report of a July 1999 VA mental disorders examination includes the following history: "The veteran was an Army reservist for 16 years and was activated for the Persian Gulf War . . . serving from 2/7/91 to 9/19/91 in South West Asia . . . The veteran reports that he fractured his right ankle on 5/92 in Saudi Arabia needing two casts. He reports that due to that problem he fell and hurt his back also." Of note is this is an incorrect history. The Veteran was not in Saudi Arabia in 1992 and his ankle injuries, which he described in detail, are documented in the service treatment records as occurring prior to his separation from active service in October 1991. In the September 2006 joint motion, the Parties agreed as follows: The Parties note that the dates for Appellant's Army Reserve service are relevant because service connection may be established for an injury incurred during active duty training or from an injury incurred during inactive duty training. [citations omitted]. Appellant's Army Reserve service should be verified and his service medical records from this period of service should be obtained. September 2006 Joint Motion at 4. The only claims on appeal that involve whether the Veteran is entitled to service connection for injuries are the claims for disability resulting from costrochondritis (diagnosed during a February 1997 VA examination based on a finding of "tenderness to palpation on chest constochondral cartilages") and a lumbar spine disability. A remand is necessary so that VA can make all necessary efforts to obtain the Veteran's Army Reserve medical records because the Parties have agreed that the records are relevant as indicated above. Asthma During the May 1999 DRO hearing the Veteran testified that he did not suffer from asthma prior to service in the Persian Gulf and that during his service he did not seek medical treatment for the condition. 1999 DRO hearing transcript at 7. He reported that two months after his return from the Persian Gulf he "could not do the same things I used to do easily as I could before. I got tired often, I was allergic to different things, I had difficulties breathing, a lot of wheezing uh, strange sound inside me." Id. Service treatment records from the Veteran's 1990-91 period of active service do not show any reports of him seeking treatment for respiratory symptoms. Medical examination at separation included normal relevant clinical evaluations. In the associated report of medical history the Veteran indicated that he either then had or had previously had asthma. On the reverse side of the medical history a physician provided noted that the Veteran had suffered from a viral illness - not asthma. In 1995 the Veteran filled out Persian Gulf Registry Sheet and listed, among other conditions, that he had asthma. An associated allergy consultation sheet includes that the Veteran had alleged onset of asthma 6 months after returning from the Persian Gulf. Physical examination revealed scattered diffuse wheezing. There is no final diagnosis of asthma. A May 1995 VA pulmonary test report shows that the Veteran had mild airflow obstruction with no significant response to bronchodilators. During the 1999 DRO hearing the Veteran's spouse testified as to changes she notice in the Veteran after his return from Persian Gulf service. She reported that he did not exercise as he had prior to that service, became fatigued easily and had difficulty breathing. 1999 DRO hearing transcript at 16- 18. Also submitted by the Veteran is a statement from "A.C." who reported that he knew the Veteran prior to the Veteran's departure for the Persian Gulf and at that time the Veteran was in good health. A.C. reported that after the Veteran's return from service the Veteran was short of breath. In a November 1996 statement "M.R.", who identified herself as a nurse in the human resources department of a company at which the Veteran worked, stated that the Veteran had visiting the company first aid station in October, November, and December 1991 complaining of respiratory problems. She reported that the Veteran had stated that his chest was tight and he could not breathe well. She also reported that she observed him having "some extra effort" while breathing and heard him wheezing. The Board recognizes that records from an employer's first aid station from almost two decades ago are not likely to still be in existence. However, particularly in light of the actions of the parties in the joint motion in this case, efforts should be made on remand to obtain the records. In February 1996, the Veteran underwent a VA general medical examination. He reported that he developed shortness of breath in early 1992 noticing that he had more difficulty in aerobic activity than previously experienced. A March 1996 VA trachea and bronchi examination report documents the Veteran's history. Objective findings included prolonged expiratory phase with expiratory wheezes. He was diagnosed with bronchial asthma. The examiner provided no opinion as to whether the diagnosed asthma had onset during the Veteran's service. VA's duty to assist claimants in substantiating claims includes the duty to provide medical examinations if certain factors are met. 38 U.S.C.A. § 5103A(d). Once VA goes down the path of providing an examination the examination provided must be adequate or, at minimum, VA must inform the claimant as to why an adequate examination will not or can not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). One of the questions at issue in a claim for service connection is whether there is a nexus between a claimed current disability and a disease or injury incurred during active service. In the instant case, there is evidence from a medical professional, the nurse at the company that the Veteran worked at after service, that the Veteran had wheezing and difficult breathing. Lay persons have offered competent evidence that the Veteran had difficulty breathing upon his return from active service. The 1996 examination report indicates that the Veteran was diagnosed with asthma at that time. The question as to whether the Veteran's diagnosed asthma is etiologically related to his service, one of the elements of 'service connection' in this case, should have been addressed by the examiner in 1996. A medical examiner that stops at the point of diagnosing a disease for which the claimant bases a request for disability benefits without providing an expert opinion as to whether the disease had onset during service does not provide an adequate examination. On remand the Veteran should again be afforded a medical examination as to his asthma and an opinion, supported by rationale and facts, should be provided. Psychiatric Disability In July 1999, the Veteran underwent a VA mental diseases examination. The examiner diagnosed an anxiety disorder, not otherwise specified, secondary to his asthma treatment. The examiner provided an opinion that based on the record and the Veteran's reported history his anxiety disorder was not related to military service. To the extent that this report indicates that the Veteran has an anxiety disorder secondary to treatment for asthma, it ties the issue of service connection for an anxiety disorder to the issue of service connection for asthma. See 38 C.F.R. § 3.310. Hence, it would be premature for the Board to adjudicate the appeal as to service connection for a psychiatric disability with the development pending as to his claim for service connection for asthma. The matter should therefore be remanded to the RO for readjudication following the required development for the asthma claim. Accordingly, the case is REMANDED for the following action: 1. Make efforts to obtain medical treatment records from the Veteran's Reserve duty. Document all efforts to obtain the records. Associate all obtained records with the claims file. Efforts to obtain the records must continue until such time as it is reasonably certain that the records either do not exist or that further efforts to obtain the records would be futile. 38 U.S.C.A. § 5103A(b)(3). A mere statement that further efforts would be futile, documented in a memorandum or otherwise, is of no value; rather, the record must show the efforts made to obtain the records such that the Board can determine that the statutory duty has been met. 2. Request that the Veteran either obtain records of treatment he received at his employer's first aid station in 1991 or complete a VA FORM 21-4142 AUTHORIZATION AND CONSENT TO RELEASE INFORMATION TO THE DEPARTMENT OF VETERANS AFFAIRS (VA) so that VA can assist him in obtaining the records. The company is : "Signal Transformer" and the RO / AMC should refer to a November 1996 letter associated with the claims file for information necessary to properly notify the Veteran in its request to the Veteran. 3. If any of the records described above are not obtained, send the Veteran and his representative a letter identifying the records which were not obtained, explaining the efforts that VA made to obtain the records, and describing any further action to be taken by VA with respect to the claims; consistent with 38 C.F.R. § 3.159(e). 4. After the above development is completed, ensure that the Veteran is provided an opportunity for a VA examination with regard to his claim for service connection for asthma. The claims file must be provided to the examiner, the examiner must review the claims file, including a copy of this remand, and the claims file must annotate his or her report as to whether the claims file was reviewed. The examiner is asked to provide an opinion as to the following: Whether it is as likely as not (a 50 percent or greater probability) that the Veteran's asthma had onset during his active service or was caused by his active service. The examiner must provide a rationale for the opinion reached. A mere listing of facts and a conclusion, without an explanation, is not an adequate examination. 4. Once the above development is completed, provide the Veteran with any other applicable assistance, as required by 38 C.F.R. § 3.159, in substantiating his claims. This assistance should include affording him additional examinations if such is indicated. 5. Then, readjudicate the issues of entitlement to service connection for a lumbar spine disability, costrochondritis, a psychiatric disability, and asthma. If any of the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. 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). 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. 2009). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs