Citation Nr: 1237016	
Decision Date: 10/25/12    Archive Date: 11/08/12

DOCKET NO.  10-24 678	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a respiratory disorder to include sleep apnea, rhinitis, and sinusitis.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from December 1990 to June 1991.  The Veteran had prior service in reserve component from May 1985 to December 1990.  Service in Southwest Asia is indicated by the record.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

In January 2012, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's VA claims file.  At the January 2012 hearing, the Veteran submitted additional evidence directly to the Board.  The Veteran also submitted a written waiver of local consideration of this evidence.  This waiver is contained in the VA claims file.  See 38 C.F.R. §§ 19.9, 20.1304(c) (2011).  At the hearing, the Veteran withdrew from his appeal claims of service connection for a neurologic disability, headaches, and a right shoulder disability.  Consequently, those issues will not be addressed by the Board.

(The issue of entitlement to service connection for a respiratory disorder to include sleep apnea, rhinitis, and sinusitis is addressed in the remand that follows the decision below.)


FINDINGS OF FACT

1.  The Veteran does not have hearing impairment in either ear as defined by VA.

2.  The Veteran has tinnitus that is as likely as not related to his active duty service.


CONCLUSIONS OF LAW

1.  The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

2.  The Veteran likely has tinnitus that is the result of disease or injury incurred during the Veteran's active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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).  The VCAA notice 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Here, pre-decisional notice letters dated in March 2009 and May 2009 complied with VA's duty to notify the Veteran with regard to the service connection claims adjudicated herein.  Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), and private treatment records in furtherance of his claims.  There is no indication that any additional action is needed to comply with the duty to assist.  The Veteran was provided a VA audiology examination in June 2009 as to the pending hearing loss and tinnitus claims.  The examination report contains sufficient evidence by which to decide the claims.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The Board therefore concludes that the June 2009 VA examination report is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet.

II. Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011).

Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2011).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

The Veteran claims that he developed hearing loss that began during his military service.  Specifically, he asserts that he sustained acoustic trauma as a result of artillery fire during Desert Storm.  See January 2012 Board hearing transcript, pgs. 16-17.  He also indicated that he incurred acoustic trauma due to the continuous noise of truck diesel engines during his active duty service.  See the VA examination report dated June 2009.  For the reasons set forth below, the Board concludes that service connection is not warranted for hearing loss.

As noted above, the Veteran served in the Marine Corps Reserve from May 1985 to December 1990.  He was subsequently called to active duty from December 1990 to June 1991.  The Board initially observes that the Veteran served as a motor vehicle operator in support of Operation Desert Shield/Desert Storm.  He was stationed in Southwest Asia from January 1991 to May 1991.  The Board has no reason to disbelieve the Veteran's sworn testimony concerning exposure to artillery fire during his deployment.  Moreover, the Veteran has submitted a statement from fellow service member, S.C., who served with the Veteran prior to and during his deployment.  In a July 2010 statement, S.C. confirmed the Veteran's assertions of sustained loud truck noise while they were stationed in Saudi Arabia.   Moreover, the Board observes that the Veteran's MOS of motor vehicle operator is consistent with his contentions of in-service noise exposure and, therefore, acoustic trauma is conceded.

Importantly, however, the critical element is whether at any time during the current appeal the Veteran has been diagnosed with hearing loss as defined under VA regulation 38 C.F.R. § 3.385.  See 38 U.S.C.A. §§ 1110, 1131.  For the reasons set forth below, the Board must answer this question negatively.

As indicated above, the Veteran was afforded a VA examination in June 2009.  The results of the June 2009 audiogram indicated the following decibel losses:





HERTZ



500
1000
2000
3000
4000
Average
RIGHT
15
10
    15
15
10
12.5
LEFT
15
15
15
15
5
12.5

The June 2009 VA examiner also noted that the speech recognition scores were 100 percent bilaterally.

Accordingly, the Veteran's hearing thresholds as documented by the June 2009 VA examiner were below those recognized by VA as denoting hearing loss.  See 38 C.F.R. § 3.385 (2011).  Additionally, the Veteran's speech recognition scores were above those recognized by VA as denoting hearing loss pursuant to 38 C.F.R. § 3.385.

Although the Veteran was exposed to loud noises in service, a hearing impairment as defined by VA regulations is not shown.  Service connection cannot be granted if there is no present disability.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In the absence of proof of a present disability, there can be no valid claim.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Board has considered the contentions of the Veteran and his spouse (see the lay statement of the Veteran's spouse dated June 2010) that the Veteran currently has a bilateral hearing disability.  Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau, supra.  That said, the Board notes that, in the current appeal, neither the Veteran nor his spouse is a medical professional and that their beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

The Board does not dispute that the Veteran is competent to report difficulty hearing.  However, his contentions are not statements merely about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have.  The Board emphasizes that, although a veteran generally can report his or her observations concerning symptoms, in this particular case, the Veteran is not competent to provide testimony that his current hearing acuity is of such severity to satisfy the regulatory requirements for a hearing loss disability for VA purposes.  See Jandreau, supra.  Because hearing impairment as defined by regulation does not involve a simple identification that a layperson is competent to make, the Veteran's unsubstantiated statements regarding the presence of a current hearing loss disability are found to lack competency.

The existence of a disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110, 1131.  See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In other words, the evidence must show that the Veteran currently has, or has had at some point during the current claim, the disability for which benefits are being sought.  Here, there is no competent medical evidence reflective of hearing impairment as defined under VA regulation 38 C.F.R. § 3.385 at any time during the current claim.  Accordingly, the preponderance of the evidence is against this service connection claim.  The benefit-of-the-doubt rule does not help, and the Veteran's claim for service connection for hearing loss is denied.  See 38 U.S.C.A § 5107 (West 2002 & Supp. 2011).

Turning to the tinnitus claim, the Veteran asserts that he has tinnitus that is due to in-service noise exposure.  See, e.g., January 2012 Board hearing transcript.  In particular, he maintains that he was routinely exposed to loud noises from diesel truck engines during his military service.  See VA examination report dated June 2009.  As indicated above, the Veteran has also indicated that he sustained acoustic trauma due to artillery noise during his deployment in Southwest Asia.  See the January 2012 Board hearing transcript, pgs. 16-17.  The Board has reviewed the record and concludes that, with application of the benefit-of-the-doubt rule, the evidence supports a finding that the Veteran's currently diagnosed tinnitus was incurred during his active duty service.

The Board acknowledges that the STRs are absent any documentation of in-service complaints of, or treatment for, tinnitus or related audiological complaints.  As discussed above, the Veteran's in-service noise exposure is conceded by the Board based upon his sworn testimony and his documented MOS of motor vehicle operator, as well as the July 2010 statement from S.C., who confirmed the Veteran's assertions of sustained loud truck noise during active duty service.

The Veteran has indicated that he has suffered from tinnitus dating from his active duty service in Saudi Arabia.  See the January 2012 Board hearing transcript, pgs. 16-17.  He testified under oath that he experienced ringing in his ears during his military service, but did not seek medical treatment for the disability.  Id. at 18.  The Veteran further testified that as noncommissioned officer, he did not want to report any signs of weakness to a doctor and risk that information getting back to the troops over whom he was in charge.  Id.

The record does not include any evidence to refute the Veteran's contention regarding the onset and continuity of tinnitus.  Additionally, the Veteran's testimony is consistent with the July 2010 statement from S.C. who confirmed that the Veteran reported "a great deal of trouble hearing due to humming in his ears from the truck he was assigned not having proper exhaust" during his service in Southwest Asia.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) & Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007).  

The Veteran testified under oath concerning his in-service noise exposure, which apparently resulted in tinnitus that continued in the years since his June 1991 discharge.  See, e.g., the January 2012 Board hearing transcript.  As previously discussed above, the Veteran is competent to report his experiences and symptoms in service.  Further, the Board notes that tinnitus is subjective-the kind of condition about which a lay person may testify.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation).  Thus, the Board finds that the Veteran is competent to relate a history of having experienced ringing in his ears.  Layno v. Brown, 6 Vet. App. 465 (1994).  A layperson is also competent to testify as to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398,403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  Thus, the Board also finds the Veteran's statements with respect to his continuity of symptomatology to be unrefuted.  In considering the evidence of record, the Board finds that the Veteran's currently diagnosed tinnitus cannot be reasonably disassociated from his conceded in-service noise exposure.  In arriving at this decision, the Board relies on the Veteran's documented in-service noise exposure, the July 2009 statement from S.C., and the Veteran's competent assertions that he began experiencing tinnitus in service and has continued to experience it since his discharge from service.

To this end, the Board recognizes that the Veteran was afforded a VA examination in June 2009 to address the claimed tinnitus.  The examiner noted the Veteran's report of bilateral tinnitus.  The examiner further reported that the Veteran had post-service recreational noise exposure including the use of a firing range with ear protection as a state trooper.  The examiner indicated that the Veteran's tinnitus "is not caused by or a result of acoustic trauma while in the military."  He explained that the Veteran's current audiogram revealed normal hearing and there was "no complaint of hearing loss or tinnitus noted in service medical records."  The examiner further stated that "[s]ince hearing thresholds are within normal limits, tinnitus is not related to hearing loss."

Critically, the June 2009 VA examiner's opinion provides little or no rationale for the conclusion rendered.  See Nieves-Rodriguez, supra; Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence).  Moreover, the VA examiner failed to acknowledge the Veteran's report of tinnitus dating from his military service, which was corroborated by S.C.  As indicated above, the June 2009 VA examiner's opinion provided incomplete rationale, and there is no other competent medical opinion of record the addresses the issue of medical nexus.

Accordingly, the evidence is at least in equipoise as to the matter of whether the Veteran's currently diagnosed tinnitus is related to his military service.  The benefit-of-the-doubt rule is thus for application.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011).  The Board will resolve reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for tinnitus.  See 38 U.S.C.A § 5107 (West 2002).


ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is granted.


REMAND

For the reasons set forth below, the Board finds that the remaining issue on appeal--service connection for respiratory disorder--must be remanded for further development.  The Veteran contends that he has been diagnosed with a respiratory disorder to include sleep apnea, rhinitis, and sinusitis that is due to his military service.  In this regard, the Board notes that, generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden, supra.

Moreover, as to the Veteran's claimed respiratory disability, because it is undisputed that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established on an alternative presumptive basis under 38 C.F.R. § 3.317.  Under this regulation, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016.  See 38 U.S.C.A. § 1117(a)(1)(A) (West 2002); 38 C.F.R. § 3.317(a) (2012).

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary of VA determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection.

Service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychologic signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  See 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2011).  The undiagnosed illness must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests.  See 38 C.F.R. § 3.317(a)(1)(i) (2011).  A chronic disability for purposes of 38 U.S.C.A. § 1117 is one that has existed for 6 months or more, including disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period.

After a review of the claims file, the Board finds that the record is not sufficiently developed to ensure an informed decision as to this claim.

The Veteran contends that he suffers from a respiratory disability as a result of his exposure to burning oil fields during his military service in Southwest Asia.  See, e.g., the January 2012 Board hearing transcript.  The Veteran has submitted a July 2010 statement from S.C. in support of his contentions.  In the statement, S.C. reports that the Veteran complained to him of "a reaction to all the oil well fires and the constant exposure to fine dust particles that [were] being kicked up on the dirt roads while delivering [ammunition] to numerous location[s] throughout the desert in Saudi [Arabia]."

To this end, the Board notes that VA has determined that there is no basis to support establishing a presumption of service connection for any diagnosed diseases, illnesses, or health effects resulting from exposure to fuels, combustion products, and propellants, during the Persian Gulf War.  See 73 Fed. Reg. 50856-69 (Aug. 28, 2008).  However, veterans are still free to pursue service connection claims based on exposure to these substances (such as oil fires) on a direct basis without the benefit of any presumptive provision.  See, e.g., Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994).

It is undisputed that the Veteran is currently diagnosed with sleep apnea.  Private treatment records show that the Veteran has also been diagnosed with rhinitis.  See the private treatment record dated June 2010.  Moreover, a past medical history of sinusitis was also indicated by the June 2011 VA examiner.  The Board additionally observes that magnetic resonance imaging (MRI) conducted in August 2010 documented "[m]ild mucosal thickening in the ethmoid sinuses without air fluid levels."

The Veteran submitted a June 2010 private medical record from Dr. S.N. in support of his claim.  As to the diagnosed obstructive sleep apnea, Dr. S.N. indicated that "within a reasonable degree of certainty I feel that the patient's extensive unprotected exposure to smoke from petroleum fires added to or exacerbated his obstructive sleep apnea; in fact, may be the item that caused the sleep apnea in the setting of other conditions.  Furthermore, it more likely than not generated the foundation for significant vasomotor rhinitis."

The Veteran was afforded a VA examination in June 2011, which confirmed the diagnosis of severe obstructive sleep apnea.  In an August 2011 addendum, the VA examiner opined that "[a]fter reviewing service treatment records and post-service treatment records, no definite documentation of obstructive sleep apnea noted in service treatment records.  It is less likely as not [that the] patient's current sleep apnea related to the military service 1990-1991."

The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Hernandez-Toyens, supra.  Critically, both the June 2011 VA examiner and Dr. S.N. provided little or no rationale for the conclusions rendered.  There is currently no other medical evidence of record addressing the issue of nexus--in particular, whether the Veteran's respiratory disorder to include sleep apnea, rhinitis, and sinusitis was incurred in, or aggravated by, his military service.  The Board therefore finds that, on remand, the agency of original jurisdiction (AOJ) must schedule the Veteran for another VA examination that addresses the nature and etiology of a respiratory disorder.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2011) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).

On remand, any outstanding relevant medical records should be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).

Accordingly, the case is REMANDED for the following action:

1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received.  All such available documents should be associated with the claims file.

2.  Thereafter, schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of any respiratory disorder to include sleep apnea, rhinitis, and sinusitis.  The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All pertinent testing deemed necessary should be accomplished, and the results of any such studies should be included in the examination report.

The examiner should identify and describe in detail any objective evidence of the Veteran's claimed respiratory disorders; and opine as to whether any identified findings are attributable to known clinical diagnoses, to include obstructive sleep apnea, rhinitis, or sinusitis.  The examiner should also render an opinion as to whether it is at least as likely as not that any identified respiratory disorder is related to active military service.  If there are symptoms or complaints that are objectively demonstrated that are not attributable to a known diagnosis, the examiner should so state, and explain whether there is an undiagnosed disability or a qualifying chronic disability as the result of service.

In rendering his/her opinion, the VA examiner should specifically address the Veteran's exposure to burning oil fields and dust during his service in Southwest Asia.  Additionally, the examiner should obtain from the Veteran a complete medical history to include information concerning the onset of symptoms.  The examiner should provide medical reasons for accepting or rejecting the Veteran's statements of continued symptoms since his military discharge.

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

3.  Thereafter, readjudicate the claim remaining on appeal.  If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs