Citation Nr: 1121909 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 07-31 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for reactive airway disease. 4. Entitlement to service connection for gastrointestinal disability, to include peptic or duodenal ulcer. 5. Entitlement to an initial rating in excess of 10 percent for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to March 1998. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans' Affairs (VA). In April 2011 argument, the Veteran's representative appeared to raise a claim for service connection for recurrent urinary tract infections. This matter is referred to the RO/AMC for any appropriate action. The issues of entitlement to service connection for cervical spine disability, low back disability and gastrointestinal disability, to include peptic and duodenal ulcer, and the issue of entitlement to an initial rating in excess of 10 percent for sinusitis 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. VA will notify the Veteran if any action is required on his part. FINDING OF FACT Reactive airway disease first became manifest in service and is reasonably shown to be related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for reactive airway disease have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Given the favorable outcome detailed below concerning the Veteran's claim for service connection for reactive airway disease, an assessment of VA's duties under the VCAA is not necessary. II. Factual Background The Veteran's service treatment records reveal that he was noted to be complaining of chest pain in October 1978. He was also found to have a rattle in his right lung with wheezing in all lobes in July 1980. Then, in August 1982 he was seen by a physician for complaints of sinus congestion, itchy eyes, hoarseness, runny nose and an increased level of dyspnea. The physician noted that the Veteran's symptoms had been worsening and diagnosed him with reactive airway disease. Also, in May 1997 the Veteran reported symptoms of nasal congestion, right ear fluid, cough and dyspnea and was diagnosed with viral syndrome. A September 2003 Moncrief Army Community Hospital (MACH) progress note shows that the Veteran was complaining of pain radiating throughout the back and shoulder. The Veteran believed that the pain was respiratory and reported an occasional cough and wheezing. He felt like he had a knot in his lungs. The pain went up his back to his neck. He also reported that the cough was productive of green sputum. The diagnostic assessment was chronic back pain and persistent cough. In an October 2004 statement, the Veteran indicated that he had asthma/reactive airway disease/bronchitis and that these problems were reflected in his medical records. In a September 2005 letter, a staff physician from MACH indicated that he had been treating the Veteran for recurrent reactive airway disease and for recurrent back pain. He noted that he had reviewed the service treatment records and his current treatment records and he opined that it was more likely than not that the recurrent reactive airway disease was directly related to the injuries the Veteran incurred in service or were aggravated by the service connected conditions. On January 2006 VA examination, the Veteran reported that he had most recently experienced pneumonia in September 2005. He also noted that he was diagnosed with reactive airway disease during his stint in military service. He reported that since that time, he had had multiple episodes of bronchitis, approximately four times per year. The Veteran felt that the problem may have been secondary to smoke inhalation that occurred during a burning of a dump in 1979. He reported that since the burning of the dump he had had frequent sinusitis and bronchitis, and was later diagnosed as having asthma. The Veteran reported that he had an occasional cough with sputum production. In particular, he experienced these symptoms during episodes of bronchitis. He denied hemoptysis or anorexia. He did report occasional episodes of dyspnea with exertion. He also reported that he was asthmatic and used a Proventil inhaler and took Zyrtec on a daily basis. He was currently a nonsmoker but he did have a remote history of smoking approximately one third pack a day for six years. This was approximately 25 years prior. Physical examination showed regular respiration, which was unlabored. The lungs exhibited coarse breath sounds without current wheezes or rales, with good excursion. Pulmonary function testing was normal. The FVC was 86.2 percent of predicted and the FEV1 was 87.5 percent of predicted with a ration of .81. The examiner found that there was insufficient objective evidence available presently to make a diagnosis of reactive airway disease. She did comment that if the Veteran did have reactive airway disease, then it was at least as likely as not related to the reactive airway disease diagnosed during military service. She noted that typically reactive airway disease could be controlled; however, it was not ordinarily cured. III. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Analysis The evidence of record reasonably indicates that the Veteran has had reactive airway disease at some point during the pendency of his claim as his treating MACH physician affirmatively indicated in September 2005 that he had been treating the disease. Also, the service treatment records show that the Veteran was diagnosed with the disease during service, as evidenced by the August 1982 physician's progress note. Additionally, the treating MACH physician, after reviewing his own records and the Veteran's service treatment records, also opined that it is more likely than not that the recurrent reactive airway disease is related to service. Further, although the January 2006 VA examiner found that there was insufficient objective evidence to make a diagnosis of reactive airway disease, she also found that if reactive airway disease was present, then it was at least as likely as not related to the reactive airway disease diagnosed during military service. Taken together, the above evidence reasonably establishes the presence of current reactive airway disease, a first manifestation of reactive airway disease in service and a relationship between this manifestation in service and the current disease, all the elements necessary to support an award of service connection. 38 C.F.R. § 3.303; Hickson, 12 Vet. App. 247, 253 (1999). In this regard the VA examiner's finding that there was insufficient objective evidence to diagnose the disease does not establish a lack of current disease/disability, since the Veteran's MACH treating physician affirmatively diagnosed the disease in September 2005, during the pendency of the Veteran's claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Also, there are no opinions of record contrary to the nexus opinions of the September 2005 MACH physician and the January 2006 VA examiner. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for reactive airway disease is warranted. 38 C.F.R. § 3.102. ORDER Service connection for reactive airway disease is granted. REMAND Regarding the Veteran's low back disability claim, the service treatment records show that he did experience low back pain in September 1997, which at the time was associated with a urinary tract infection. Then, on his December 1997 report of medical history at separation, the Veteran reported recurrent back pain and the physician's summary included with the history noted chronic low back pain. Post-service medical records as early as January 2003 also show treatment and evaluation for low back pain. However, on January 2006 VA examination, the examiner found that the objective evidence did not support a diagnosis for the Veteran's spine. Subsequently, though, a July 2006 private lumbar spine MRI produced a diagnostic impression of left central annular tear with small associated protrusion at L5-S1, along with mild underlying intervertebral osteochondrosis with a diffuse disc bulge and bilateral facet arthropathy. Also, in a November 2006 letter, a MACH nurse practitioner indicated that she had been treating the Veteran for degenerative disc disease, degenerative joint disease of the cervical spine and low back pain, and that after reviewing the service treatment records and her own current treatment records, it was her opinion that these conditions were directly related to injuries the Veteran incurred in service or were aggravated by service-connected conditions. The nurse practitioner did not provide any rationale for this opinion, however. Given that objective evidence of a current low back disability was produced subsequent to the January 2006 VA examiner's findings and given that the MACH nurse practitioner's finding at least suggests a nexus between current low back disability and the Veteran's low back problems in service, the Board finds that a current VA examination is necessary to determine the likely etiology of any current low back disability. Additionally, given the nurse practitioner's finding that the Veteran also has a current cervical spine disability either directly related to service or aggravated by a service connected condition, the current VA examination should also address the likely etiology of any current cervical spine disability. Regarding the Veteran's claim for gastrointestinal disability, the Board notes that after the most recent August 2007 supplemental statement of the case, the Veteran submitted January 1978 service treatment records showing that he was hospitalized for upper gastrointestinal tract bleeding, etiology undetermined and anemia, secondary to the bleeding. He was treated with five units of red blood cells, antacid therapy and iron sulfate and the treating physician thought that the cause of the bleeding may have been upper GI tract erosions. Also, on January 2006 VA examination, the Veteran reported that he had received a recent upper GI series from Columbia Gastroenterologists, which showed gastrointestinal scarring, while also reporting that he had been treated for "duodenal ulcer" with gastrointestinal bleed during service. The examiner then found that the Veteran's subjective report of scarring from a gastrointestinal bleed was at least as likely as not related to his gastrointestinal bleed/ulcer during active service. The examiner commented that bleeding from gastric ulcers typically did leave residual scars and that people with a history of gastrointestinal bleed/ulcers were considered to be a high risk for future gastrointestinal bleed/ulcers. The Board notes that documentation of the results of upper GI series referenced by the Veteran during the January 2006 VA examination have not been made a part of the record. Accordingly, on remand, with appropriate assistance from the Veteran, the RO/AMC should attempt to obtain this record. Additionally, if the record shows gastrointestinal scarring or other findings suggesting that current gastrointestinal disability may be related to the Veteran's episode of gastrointestinal bleeding in service, the RO/AMC should arrange a new VA gastrointestinal review, to include examination if indicated, to determine the likely etiology of any current gastrointestinal disability. Regarding the Veteran's claim for increase for sinusitis, the Board notes that the only VA examination to assess this disability was performed in January 2006 and was done to aid the initial determination as to whether the sinusitis was service-related. Since that time the record includes evidence, which tends to indicate that the sinusitis may have worsened in severity, including a July 2006 letter from a treating MACH physician certifying that the Veteran had experienced chronic sinusitis treated with three or more courses of antibiotics per year. Thus, given that the initial January 2006 VA examination is more than five years old and was done for purposes of determining service connection, and given the evidence suggesting a possible worsening of the sinusitis, the Board finds that a VA examination to assess the current severity of the sinusitis is necessary before final adjudication of this claim. Prior to arranging for the above development, the RO should ask the Veteran to identify all sources of treatment or evaluation he has received for low back disability, cervical spine disability, gastrointestinal disability and sinusitis, and should secure copies of complete records of the treatment or evaluation from all sources identified (which are not already of record). In particular, the RO should obtain all available pertinent records from MACH from June 2004 to the present and should obtain all available pertinent VA medical records from March 2007 to the present. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should ask the Veteran to identify all sources of treatment or evaluation he has received for low back disability, cervical spine disability, gastrointestinal disability and sinusitis, and should secure copies of complete records of the treatment or evaluation from all sources identified. In particular, the RO/AMC should ask the Veteran to sign an appropriate release of information for Columbia Gastroenterologists and should then obtain any records of gastrointestinal treatment and evaluation, to include documentation of any GI series, from this source. Additionally, the RO should obtain all available pertinent records from Moncrief Army Community Hospital (MACH) from June 2004 to the present and should obtain all available pertinent VA medical records from March 2007 to the present. 2. The RO should arrange for a VA examination by an appropriate examiner to determine the likely etiology of any current lumbar spine and cervical spine disabilities. The Veteran's claims file should be made available for review in conjunction with the examination, to include the Veteran's service treatment records. Any indicated tests should be performed. The examiner should then provide opinions as to whether any current low back disability is at least as likely as not (i.e. a 50% chance or greater) related to the Veteran's military service or to any service-connected disability and whether any current cervical spine disability is at least as likely as not (i.e. a 50% chance or greater) related to the Veteran's military service or to any service-connected disability. The examiner should explain the rationale for all opinions given. 3. The RO should arrange for a VA examination by an appropriate examiner to determine the current severity of the veteran's sinusitis. The Veteran's claims file should be made available for review in conjunction with the examination. Any indicated tests should be performed. The examiner should then specifically comment on the current severity of the Veteran's sinusitis, noting whether the sinusitis has required bed rest and treatment by a physician and whether the sinusitis is characterized by headaches, pain, tenderness, purulent discharge and/or crusting. 4. If and only if, the upper GI series from Columbia gastroenterologists, or other new information obtained by the RO/AMC, shows gastrointestinal scarring or other findings suggestive of current gastrointestinal disability, which may be related to the Veteran's episode of gastrointestinal bleeding in service, the RO/AMC should arrange for a VA opinion or examination by an appropriate examiner to determine the likely etiology of any current gastrointestinal disability. The veteran's claims file should be made available for review in conjunction with the examination. Any indicated tests should be performed. The examiner should then provide an opinion whether any current gastrointestinal disability, is at least as likely as not (50 percent probability or more) related to the Veteran's military service, to include the gastrointestinal bleed therein. The examiner should explain the rationale for the opinion given. 5. The RO/AMC should then readjudicate the claim. If it remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs