Citation Nr: 1030950 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 06-19 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), or as a result of undiagnosed illness. 2. Entitlement to service connection for a lung disorder, to include asthma and chronic obstructive pulmonary disease (COPD), to include as a result of undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from July 1990 to July 1993. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, inter alia, denied the Veteran's claims for service connection for hypertension and a lung disorder. During the pendency of this appeal, jurisdiction of the claims folder was transferred to the RO in Montgomery, Alabama. The Veteran completed an appeal of his claim for service connection for headaches; however, this claim was granted by the March 2009 rating decision. The grant of service connection for headaches was a complete grant of the benefits which had been sought on appeal. See Grantham v. Brown, 114 F.3d 1156. 1158-59 (Fed. Cir. 1997) (the Veteran must separately appeal downstream issues). As such this issue is no longer on appeal. In October 2006, the Veteran testified at a hearing at the RO in Montgomery, Alabama, before a Decision Review Officer (DRO). A copy of this transcript has been associated with the record. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Before addressing the merits of the Veteran's claims for service connection for hypertension and a lung disorder, the Board finds that additional development of the evidence is required. In disability compensation (service-connection) claims, the VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). See also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the Veteran's claim for service connection for a lung disorder, the Veteran has claimed that he experiences a breathing disorder due to his service. See the Veteran's March 2004 claim. The Veteran's medical record shows that he was provided with pulmonary lung test in November 2004, which indicated that the Veteran is experiencing a severe obstructive lung defect; although there is no diagnosis or etiology provided with the record. However, a general VA medical examination in November 2004, reviewed the Veteran's history of a "respiratory disturbance" beginning around 1992 or 1993 and diagnosed the Veteran with "COPD (asthma)." Furthermore, the Veteran has submitted a private treatment record dated in March 2006 which indicates a diagnosis of and treatment for bronchitis at that time. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). However, the Board also notes that the Veteran's lungs have been examined and found to be normal a number of times both during and after his service. See the Veteran's pulmonary function report of August 1992, separation examination of May 1993, and the private treatment records dated in January 2004, and March and November 2006. Specifically, the Veteran has indicated that he experiences COPD and asthma, which occurred in service, and/or were caused by exposure to dust and smoke during service in Southwest Asia. See the Veteran's April 2005 notice of disagreement (NOD), June 2006 substantive appeal (VA Form 9), and the October 2006 DRO hearing transcript pges. 6-8, 12. The Veteran is competent to state that he was exposed to dust and smoke during his service in Southwest Asia. 38 C.F.R. § 3.159(a)(2). Further, his testimony is credible in consideration of the grant of service connection for PTSD due specifically to service in Southeast Asia during the Persian Gulf War, as well as his DD Form 214 which indicates medals and awards consistent with service in Southwest Asia. As such, exposure to dust and smoke is consistent with the records of the Veteran's service. Regarding the history of his disorder, the Veteran service treatment records (STRs) indicate that he was treated for dyspnea in August 1992, with a note of a history of hyperventilation in his May 1993 report of medical history. As noted above, the Veteran was provided with a VA medical examination in November 2004 with an assessment that included COPD and asthma; however, this examination concluded that the examiner was "unable to find a correlation between his above symptoms/diagnoses... and his Gulf War service. The etiology of his symptoms and diagnoses are unknown." Since this examination, the Veteran has provided relevant evidence, particularly by in statements that he was exposed to due to missions in contaminated air from "dust storms," and "oil wells." See the Veteran's June 2006 VA Form 9, and the October 2006 DRO hearing pges. 6-8, 12. Finally, the Board also notes that the Veteran has raised the possibility that his disorders are due to an undiagnosed illness. See the Veteran's March 2004 claim. The examiner's statement that the etiology of his symptoms and diagnoses is "unknown" is inadequate to address the Veteran's contentions without further explanation as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) (holding that when an examiner provides a statement that etiology cannot be determined, the examiner should clearly identify what cannot be determined, i.e., whether or not the answer cannot be determined from current medical knowledge, or if the actual cause cannot be selected from multiple potential causes). Therefore, although the VA medical examiner provided a thorough review of the medical history of the Veteran's lung disorder, the necessary rationale is not provided with the examiner's conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under the above caselaw, the VA medical examination of November 2004 failed to adequately address the issue of direct service connection for a lung disorder, and also failed to provide an adequate rationale for the opinion provided regarding probability that any current lung disorder is connected to the Veteran's military service, including the Veteran's service in Southeast Asia. Accordingly, the Veteran must be provided a new VA examination regarding his claim of service connection for a lung disorder which provides an adequate opinion and rationale for the Board to review. Second, a further VA medical examination and opinion are required regarding the Veteran's claim for service connection for hypertension. Service connection may be established on a secondary basis for a disability, shown to be proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran first raised his claim for service connection for hypertension as due to an undiagnosed illness under 38 C.F.R. § 3.317. See the Veteran's March 2004 claim. However he has also indicated that his hypertension is secondary to or aggravated by his PTSD. See the Veteran's June 2006 NOD, the DRO hearing transcript pges. 4, 12, and the Veteran's February 2008 statement. The Veteran has also provided a private treatment record dated in January 2008 which states that the Veteran's hypertension "may be caused by the PTSD or maybe [sic] aggravated by the PTSD." The Veteran is not competent to indicate that his PTSD aggravates his hypertension, as this is the type of determination requiring medical skill or knowledge. 38 C.F.R. § 3.159(a)(2). Furthermore, the January 2009 medical record indicates that the Veteran's PTSD may aggravate the Veteran's hypertension, but does not provide a conclusive rationale or opinion in this regard. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. The Veteran was provided with a VA medical examination in December 2009 which indicated that the Veteran's hypertension may be "more related to his genetic component and mostly has to do with his idiopathic hypertension." The Veteran was also provided with a VA medical examination in January 2009 which stated that the Veteran's PTSD is less likely as not a cause of his hypertension, "because PTSD is not a known cause of hypertension." The examiner further stated that, according to the literature, over 90 percent of hypertension has no identified cause. As such, these opinions indicate that the Veteran's hypertension is either due to a genetic component, or to a medically unidentifiable cause, but do not address whether or not the Veteran's PTSD aggravates his hypertension beyond its natural progression. The Board is required to consider all issues raised by the claimant or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). When the VA undertakes to provide a medical examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. at 312; see also Stefl v. Nicholson, 21 Vet. App. at 123. As such, although the AOJ provided the Veteran with VA medical examinations and opinions in December 2008 and January 2009, these opinions have not addressed whether or not the Veteran's hypertension is aggravated by his service-connected PTSD. Therefore, the evidence of record is inadequate to allow the Board to fully review the Veteran's claim for service connection for hypertension, either as secondary to or aggravated by his service-connected PTSD, because none of the medical opinions of record have provided a sufficient opinion and rationale regarding whether or not the Veteran's hypertension is secondary to, or aggravated beyond its "natural progress" by, his service- connected PTSD. Given the caselaw requiring an examination which is adequate for rating purposes, a new VA medical opinion is needed to determine whether or not the Veteran's service- connected PTSD causes or aggravates the Veteran's hypertension beyond the natural progression of the disease. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with a new VA examination, by an appropriate specialist, to determine the nature and etiology of any current lung disorder. The Veteran is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim. The examination should include any diagnostic testing or evaluation deemed necessary before providing a diagnosis and etiology of any current lung condition. The claims file, including a complete copy of this remand, must be made available for review of his pertinent medical history - including, in particular: the Veteran's in-service treatment for shortness of breath (documented in August 1992 and the Veteran's separation history in May 1993); the November 2004 VA medical treatment record and examination which diagnosed the Veteran with an obstructive lung defect, COPD, and asthma; as well as the medical records and tests which have indicated that the Veteran's lungs were normal. The examination report must indicate whether such review was accomplished. The examiner should reconcile the medical history of the Veteran contained in the claims file, along with any history provided by the Veteran himself, and provide a complete history of any current lung disorder. After doing this, the examiner should then answer the following question: is it at least as likely as not (a 50 percent or greater likelihood) that any current lung disorder is caused by, aggravated by, or otherwise related to the Veteran's service from July 1990 to July 1993, including due to any exposure to air contaminated by dust or smoke during service in Southeast Asia? The examiner should also comment on whether or not the Veteran's current symptoms and manifestations of a lung disorder should be classified as an undiagnosed illness. Any opinions expressed by the examiner must be accompanied by an explanation of the rationale for the opinion expressed. If the examiner cannot provide such an opinion, this should be clearly stated, and the reasons such an opinion cannot be provided must also be provided in the examination report. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. Provide the Veteran with a new VA examination, by an appropriate specialist, to determine the nature and etiology of his hypertension. The Veteran is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim. The examiner must specifically answer the following questions: A) Is it at least as likely as not that the Veteran's currently diagnosed hypertension is caused by his service-connected PTSD? B) Is it at least as likely as not that the Veteran's currently diagnosed hypertension is aggravated beyond its natural progression by his service-connected PTSD? C) The examiner should also comment on whether or not the Veteran's current symptoms and manifestations of his hypertension should be classified as an undiagnosed illness. In answering these questions, the physician should address the history of the Veteran's hypertension, and the history and current state of his service-connected PTSD. The examiner must address the private treatment record of January 2008 which indicates that his hypertension may be related to or aggravated by his PTSD, as well as the VA medical examinations of December 2008 and January 2009. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the evidence of record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible. 3. Then review the appellant's claims file and ensure that the foregoing development action has been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 4. After completing the above development, the AOJ should readjudicate the issues on appeal, considering any new evidence secured since the March 2009 supplemental statement of the case (SSOC). Adjudication of the claim for service connection for hypertension must consider the applicability of aggravation of a nonservice-connected disorder by a service-connected disorder as provided in 38 C.F.R. § 3.310(a) (2009) and Allen v. Brown, 7 Vet. App. 439, 448 (1995). If this claim is not granted to the appellant's satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 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. 2009). _________________________________________________ A. BRYANT 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).