Citation Nr: 1031699 Decision Date: 08/24/10 Archive Date: 09/01/10 DOCKET NO. 07-29 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for asthma/reactive airway disease, to include as secondary to service connected sinusitis with allergic rhinitis. 2. Entitlement to service connection for sleep apnea, to include as secondary to service connected sinusitis with allergic rhinitis. 3. Entitlement to service connection for migraine headaches, to include as secondary to service connected sinusitis with allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran had active service from January 1985 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in June 2010. A transcript of the hearing is of record. The issue of entitlement to service connection for a thyroid condition has-been raised by the record via a statement in the June 2010 hearing expressing a desire to raise such claim (p. 15, Transcript), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The Veteran claims entitlement to service connection for asthma, sleep apnea and migraines all to include as secondary to her service connected sinusitis with allergic rhinitis. The Board finds that it is necessary to remand all these issues for further development. First the Veteran has alleged the potential existence of records in the custody of the Government which could contain pertinent evidence for all claimed issues. Specifically, the Veteran has discussed the possibility that there may be medical records from after her discharge in 1992 to around 1993 when she was a dependent of another service member who she believes was discharged from the service in 1993. See 2010 Hearing Transcript p. 7. She has also indicated that she was treated for four years at the VA medical center in Martinsburg, West Virginia between 2000 and 2004 but suggests that these records are missing. She did indicate that she may have copies at home, but did not submit any additional records other than some originals of service treatment records (the copies of which are already at the Board) and some copies of VA records and examination reports from 1995. With regard to the claim for service connection for asthma, the Veteran has testified that she had symptoms of asthma in service, including an episode where she described nearly fainting after having an allergic reaction to a shot. She also suggested the possibility that she may have asthma due to duties in service such as supervising the burning of medical waste. She also pointed to various VA records which she suggests show possible aggravation of a respiratory condition including a March 2002 record suggesting allergies were causing bronchospasms. The record also suggests a history of reactive airway disease. To date she has not undergone a VA examination to specifically address the etiology of her claimed asthma/reactive airway disease. While an October 1995 VA ENT examination did note some respiratory problems reportedly while in Japan, but no history of such problems upon return to the United States or post service, such examination did not include review of the claims folder which does now include evidence of current respiratory problems that were not present at the time of the October 1995 examination. Thus a new VA examination is necessary to properly address this matter. With regard to the claim for service connection for sleep apnea, the Veteran has suggested that this too began during active service. She testified that she had symptoms of stopping breathing during service. She also has asserted that sleep apnea could currently be aggravated by her sinusitis and rhinitis, as she has to adjust her CPAP machine (used to treat sleep apnea) during flare-ups of her allergies. She indicated that she was diagnosed with sleep apnea as early as 1995 at the VA medical center in Columbia, South Carolina but not formally treated for it. Again, no examination has been conducted to address the etiology of this condition; one should be scheduled to properly address this matter. With regard to the claim for service connection for migraine headaches, the Board notes that the RO denied the claim determining that her well documented headaches are merely symptoms of her service connected sinusitis/rhinitis and are thus not a separately compensable disability. The Veteran disagrees. She contends she has a migraine condition that is completely separate from the sinus headaches that she also experiences. She has testified that she had headaches before she ever had any problems with sinusitis and cites that they began after she fell while running during service and dislocated her shoulder. The service department records and post service records do show repeated treatment for sinusitis with headaches listed among the symptoms. However, medical evidence also includes mention of a separate migraine condition, with such diagnosed in a March 1995 VA record, as well as in an April 2005 VA record diagnosing migraine with exacerbation. The Board does note that the Veteran underwent a VA examination in June 2006 which provided an unfavorable opinion stating that it was less than likely that her headaches began in service, and that they are symptoms of nasal and sinus allergies. There are some problems with this opinion. The examiner is not shown to have reviewed the claims folder prior to making this opinion, and in fact stated that the Veteran's military records should be reviewed (which clearly were not). The examiner also failed to mention the April 2005 VA record diagnosing migraines when reporting that the Veteran received treatment for problems other than migraines during the year prior to this examination (2005). Accordingly, the June 2006 examination and opinion is inadequate for the purposes of adjudicating this claim for service connection for migraines. Another examination is indicated. The Board also notes that while the only evidence of a head injury during service is the Veteran's own lay testimony, there is evidence of a pre-service nasal and facial fracture shown in the service treatment records, with said injury having taken place in July 1983. With the preexisting head injury, any examiner should be asked to address and comment on the likelihood that military service aggravated a preexisting head injury. Finally, as the most recent records currently associated with the claims folder (other than the VA examinations from 2006) are from 2005, an attempt to obtain any outstanding records of pertinent medical treatment. VA's duty to assist the Veteran includes obtaining relevant medical records and a thorough and contemporaneous medical examination in order to determine the nature and extent of the Veteran's disability. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and ask that she identify all sources of treatment for her enumerated disorders, and to furnish signed authorizations for release to the VA private medical records in connection with each non-VA source identified. Copies of the medical records from all sources since 2005 should then be requested. All records obtained should be added to the claims folder. In so doing the AOJ should attempt to obtain: (a) the Veteran's records of treatment during the time in which she was a dependent of another member of the military between her separation from active service in April 1992 and on or after 1993; (b) records from the VA medical facility in Martinsburg, West Virginia dated from 2000 to 2004. If any records are found to not be available, the AOJ should inform the Veteran of the unavailability of such records (and request that the Veteran provide the AOJ with complete copies of all such records she reported as being in her possession at the June 2010 hearing.) If requests for any private or non- VA government treatment records are not successful, the AOJ should inform the Veteran of the non-response so that she will have an opportunity to obtain and submit the records himself, in keeping with her responsibility to submit evidence in support of her claims. 38 C.F.R. § 3.159 (2009). 2. Thereafter following completion of the above, the AOJ should schedule the Veteran for a pulmonary disorders examination to determine the nature and etiology of the Veteran's claimed asthma/reactive airways disease and sleep apnea. The claims folder must be made available to the examiner prior to the examination, and the examiner should acknowledge such review of the pertinent evidence in the examination report. All indicated studies including pulmonary function testing should be performed and all manifestations of current disability should be described in detail. The examiner should address the following: (a) Does the Veteran have any current, chronic pulmonary disability of asthma/restrictive airways disease or other pulmonary disease, and/or does the Veteran have any current, chronic disability of sleep apnea? If so, is it at least as likely as not (i.e., at least a 50/50 probability) that any such disability or disabilities began in service or was the result of trauma sustained in service? The lay history of the Veteran having been allegedly exposed to smoke from medical waste, as well as her service treatment records, should be addressed in answering this question. (b) If any pulmonary disability such as asthma/restrictive airway disease and/or any sleep apnea disability did not begin in, nor was caused by active service, the examiner should provide an opinion as to whether is it at least as likely as not (i.e., at least a 50/50 probability) that any such disability is being caused or aggravated by her service connected sinusitis with allergic rhinitis. Any further specialized testing necessary to obtain such an opinion regarding this matter should be conducted. Each opinion should contain comprehensive rationale based on sound medical principles and facts. 3. Thereafter following completion of the above, the AOJ should schedule the Veteran for a special neurological examination to determine the nature and etiology of the Veteran's claimed migraine headaches. The claims folder must be made available to the examiner prior to the examination, and the examiner should acknowledge such review of the pertinent evidence in the examination report. All indicated studies should be performed and all manifestations of current disability should be described in detail. The examiner should address the following: (a) Does the Veteran have any current, chronic migraine headache disability? If so, is it at least as likely as not (i.e., at least a 50/50 probability) that any such disability began in service; or was the result of trauma sustained in service; or if preexisting, was aggravated by active service? The history of the Veteran having sustained a nasal and facial fracture prior to service, and her lay history of injuring her head during a fall during active duty should be addressed in answering this question. (b) If the opinion is against a finding that a migraine disorder began or was caused by active service, the examiner should provide an opinion as to whether is it at least as likely as not (i.e., at least a 50/50 probability) that any such disability is being caused or aggravated by her service connected sinusitis and allergic rhinitis. The examiner should clearly indicate whether the migraine condition is a separate condition from the sinusitis, as opposed to merely being an inclusive symptom of the sinus/rhinitis condition. Any further specialized testing necessary to obtain such an opinion regarding this matter should be conducted. Each opinion should contain comprehensive rationale based on sound medical principles and facts. 4. When the above actions have been accomplished, readjudicate the veteran's claims. If any benefit sought is not awarded, issue a supplemental statement of the case and afford the veteran the appropriate opportunity to respond. The supplemental statement of the case should list all pertinent laws and regulations. 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). These claims 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).