Citation Nr: 1301274 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 98-01 629A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disorder to include chronic bronchitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from June 1989 to September 1991. The appeal comes before the Board of Veterans' Appeals (Board) from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the Board at a video conference hearing conducted in December 2009 between the RO and the Board Central Office. A transcript of the hearing is contained in the claims file. In May 2010, the Board reopened the Veteran's claim for service connection for a respiratory disorder to include chronic bronchitis and remanded the issue for additional development. The Board remanded the case again in February 2012. It now returns to the Board for further review. The Board in February 2012 noted that the issue of entitlement to service connection for hypertension had been raised by the record but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board accordingly lacked jurisdiction over that issue and referred it to the AOJ for appropriate action. It does not appear from a review of the claims file that appropriate action has been taken. According, because the Board still lacks jurisdiction, the issue is again referred to the AOJ for appropriate action. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.101 (2012); see also Bernard v. Brown, 4 Vet. App. 384, 390 (1993) (38 U.S.C.A. § 7105 establishes a series of very specific, sequential, procedural steps that must be carried out by a claimant and the RO before a claimant may secure appellate review by the Board.). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends, in effect, that he developed a respiratory disorder as a result of exposures in service, including exposure to oil fires while stationed in the Persian Gulf during the Persian Gulf War. The Veteran's service personnel records reflect that he was stationed aboard an aircraft carrier which was in the Persian Gulf during the Persian Gulf War. However, service treatment records do not indicate any acute reaction to any exposures in service. Post service records also do not reflect any medical findings of reactions to exposures in service. In the May 2010 remand, the Board had directed that the Veteran be afforded the opportunity to address how he had allegedly been exposed to asbestos in service. However, the Veteran failed to respond to that query by the RO/AMC in October 2010. Service personnel records also revealed no asbestos exposure. In February 2012, the Board concluded that development requested by the May 2010 remand had been fulfilled regarding alleged asbestos exposure. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). However, in its May 2010 remand, the Board also had requested a VA examination to address whether any respiratory disorder that may be present was causally related to service. In its February 2012 remand, the Board noted that a June 2010 VA examiner concluded that there was no current diagnosis of either acute or chronic bronchitis, and concluded that the Veteran had asthma that existed prior to service and was not aggravated by service. In its February 2012 remand, the Board noted that the VA examiner did not provide any reason or explanation for concluding that the Veteran did not have a current diagnosis of chronic or acute bronchitis, notwithstanding recent bronchitis diagnoses. As the Board then noted, a medical opinion which does not support its conclusion with an analysis that can be weighed against contrary opinions is inadequate for adjudicative purposes. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board also noted that the requirement of current disability to support a service connection claim is fulfilled with the presence of the disability at any time during the pendency of the claim, citing McLain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran's service enlistment examination in October 1988 is negative for any respiratory disorder. Where a disorder is not noted upon entry into service, a presumption of soundness upon entry into service applies. 38 U.S.C.A. § 1111. However, as the United States Court of Appeals for Veterans Claims (Court) has recently explained, where there is no record of the claimed disorder having become manifest in service, the presumption of soundness does not apply. Gilbert v. Shinseki, __ Vet. App. __, No. 11-2355, slip op. at 5-6 (Oct. 24, 2012), citing Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007); Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (noting that the "presumption of soundness relates to the second element [of service connection] . . . , the showing of in-service incurrence or aggravation of a disease or injury"'). Service records reflect three discrete instances of assessed upper respiratory infections, in October 1989, October 1990, and June 1991. The service records appear to reflect that these conditions resolved without persistent residuals, based on the absence of ongoing follow-up care after these instances of infection. In one of these instances, in October 1989, acute bronchitis was assessed as associated with the upper respiratory infection, but again, there is no indication of persistence of either the infection or the bronchitis or of any other residuals. An undated Service Medical Board report was prepared in 1991, based on the noted age of the Veteran and the Veteran's service discharge as a result of the report's recent findings. The report informed of current examinations having been conducted including pulmonary examinations, with the pulmonary findings within normal limits. (The service separation was based on a finding in the report of a voluntary posterior dislocation of the shoulder which existed prior to service.) Thus, even though the Veteran's service medical records do not note a respiratory disorder upon service entry, the presumption of soundness may be inapplicable if a chronic or ongoing respiratory disorder did not become manifest in service. 38 C.F.R. § 3.303; Gilbert. Post-service records complicate this picture, however. The Veteran's date of service separation is September 20, 1991. A treatment record on October 6, 1991, indicates that the Veteran was then seeking emergency room treatment for breathing difficulties, having been treated for approximately the prior two weeks for bronchitis. Findings at the October visit included inspiratory wheezes, productive cough, and yellowish green sputum, and pulse oxygen of 88%. He did respond to aerosolized Albuterol. Treating personnel diagnosed bronchospasm with bronchitis. This October 6th treatment and the history then provided would place onset of respiratory difficulties virtually immediately after service separation, presenting a significant question of possible development of a respiratory condition in service, or possible service aggravation of any pre-service respiratory disorder. Private treatment and hospitalization records beginning in November 10, 1991 and continuing for an interval of weeks thereafter were undertaken based on complaints of difficulty breathing, cough, and purulent and blood-tinged sputum for the prior seven weeks. The Veteran then reported prior treatment included bronchodilator steroids and antibiotics without benefit. Bronchoscopy and laboratory testing upon the November 1991 hospitalization resulted in diagnoses of severe tracheobronchitis with mycoplasma, and staphylococcus and hemolytic influenza. Upon a psychiatric screening on November 13, 1991, the Veteran reported significant anger, and provided a history of constant health problems since his discharge from service after only being sick seven days in service. The examiner diagnosed dysthymic disorder, to rule out somatization disorder. (There is no indication that this examiner had a record of the Veteran's diagnosed tracheobronchitis or his staphylococcus and hemolytic influenza.) Upon a January 1992 psychiatric assessment, the Veteran provided a history of becoming sick with bronchitis three to four weeks after separating from service, being hospitalized, and losing the job that he had secured following service separation. The Veteran's narrative at the time suggests all these occurred simultaneously, and thus are in apparent conflict with his prior history upon hospitalization admission on November 10, 1991, when he reported a seven-week history of respiratory illness and treatment with bronchodilator steroids and antibiotics which had proved ineffectual prior to the admission. Thus, the history the Veteran provided upon suffering from major depression in January 1992 (he was then also treated for an Ibuprofen overdose) appears sufficiently inconsistent with documented prior treatment. Over six days between May and June of 1992, the Veteran was again hospitalized for assessed pneumonia with bronchial spasm. He then provided a history of increasing shortness of breath and productive cough over the prior two to three weeks. A recent diagnosis of right otitis media treated with Amoxicillin, though without improvement, was also noted. A history was noted of bronchoscopy earlier in the year essentially negative except for hyper-sensitive airways. He reported a history of respiratory difficulties for "quite some time" with a diagnosis of asthma. The Veteran was hospitalized again in late December 1992 for assessed acute bronchitis and possible early pneumonia, with that diagnosis supported symptomatically as well as with x-rays revealing possible early right middle lobe infiltrates. In years immediately following service, the Veteran was treated for variously characterized respiratory conditions including bronchitis and reactive airway disease. These records do not reflect any assessment of a link to service, even while some reflect the Veteran's history of having been exposed to circumstances of the Persian Gulf War including burning oil. The Veteran was afforded a VA examination for compensation purposes in June 2010, and that examiner opined that an asthma disorder existed prior to service and was not at least as likely as not related to service. In an addendum medical report, the June 2010 examiner affirmed the June 2010 opinion, concluding that the Veteran's respiratory disorder was asthma and not bronchitis, and explaining that the conditions had distinct clinical profiles. Unfortunately, the June 2010 examiner did not provide an explanation as to what those distinct medical profiles were, and why the Veteran in the repeated hospitalizations in the months and years immediately following service was diagnosed repeatedly with bronchitis. More troubling, the June 2010 VA examiner relied on an inaccurate medical history. The only record the examiner addressed in the years following service from 1991 through 1996 was reported by the examiner as follows: 'Per note dated 11/10/1991 "Past [history] denies any significant illness [,] [history of] bronchial asthma as a child."' The examiner failed to address the hospitalization for diagnosed severe bronchospasm and pneumonia in November 2010, or the records of several other hospitalizations for bronchitis or bronchospasm and/or pneumonia in the year following service separation. Such oversights call into question the validity of the examiner's assessment of asthma and not bronchitis in the Veteran. The same June 2010 examiner provided an addendum medical opinion in March 2012, but relied on the same previously noted medical history which excluded respiratory treatments and diagnoses of bronchitis and pneumonia in the months and years immediately following service. Because the VA examiner's factual premises appear erroneous, the Board finds that the conclusions drawn cannot be relied upon as probative in this case. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). Further, once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board concludes that the case must be again remanded for an examination by a different examiner to answer questions raised both by the historical record, and by the diagnostic and etiological conclusions of the June 2010 VA examiner. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of the remanded claim for service connection for a respiratory disorder to include chronic bronchitis. 2. Obtain and associate with the claims file records of VA treatment to the extent not already obtained and associated with the claims file. Also obtain any unobtained private treatment records, with the Veteran's authorization and assistance, as appropriate. 3. Thereafter, afford the Veteran an examination by pulmonologist or similar appropriate specialist other than the examiner who conducted the June 2010 VA examination and provided the March 2012 BDQ examination report (to avoid any prejudgment of issues or appearance of prejudice) to address the nature and etiology of any current respiratory disorder, to include chronic bronchitis. Some effort at coordination with the Veteran for scheduling the examination should be made so that the examination may be conducted when the Veteran reports having active respiratory disease. The claims file must be made available to the examiner for review before the examination. In addressing the questions below, the examiner's opinion must be informed by a review of the Veteran's medical history and findings as documented in service and post-service records, inclusive of any prior examinations and treatments. To the extent found credible and medically supportable, other evidence, including lay statements, may be used to support a diagnosis or an assessment of severity or etiology. Any tests or studies necessary to answer the questions below should be conducted. The examiner should do the following: a. The examiner is advised that a June 2010 VA examiner, who also provided an addendum report in March 2012, concluded that the Veteran had an asthma condition dating from childhood and did not have any respiratory disorder at least as likely as not related to service. However, that examiner's opinion cannot not be relied upon as probative because the examiner failed to note the Veteran's multiple hospitalizations in the year immediately following service and the diagnosed severe bronchitis and pneumonia during those hospitalizations. Further, that June 2010 examiner asserted that the Veteran had asthma and not bronchitis, based on these diseases' distinct profiles, though without providing further explanation as to what these distinct profiles were, and without addressing why the past diagnoses of bronchitis were erroneous. b. The examiner should carefully review the Veteran's past clinical records, including particularly those of hospitalizations for respiratory disorders in the first year immediately following service, and hospitalizations, treatments, and examinations in subsequent years. The examiner should note the Veteran's assertions of being exposed to oil fires in service while stationed in the Persian Gulf during the Persian Gulf War, and service records verification that he did in fact serve in the Persian Gulf during the Persian Gulf War. c. The examiner should note in particular history, findings, diagnoses, and treatments upon emergency room visit on October 6, 1991 (16 days following service separation), when a two week history of treatment for bronchitis was noted, and upon hospitalization beginning November 10 1991, when the Veteran reported respiratory treatment for the prior seven weeks. The examiner should then note findings in October and November of 1991 and in the months and years thereafter. d. The examiner should address whether such exposures to burning oil in service may have caused or contributed to respiratory difficulties in the year immediately following service, and whether those exposures may have caused or aggravated any respiratory disorder from which the Veteran has suffered in recent years. e. The examiner should also address the June 2010 examiner's assertion that prior diagnoses of bronchitis had been erroneous and that the Veteran instead had asthma which existed prior to service and was not manifested in service. The examiner should consider these assertions, and should also consider the past diagnoses of bronchitis which were based on x-rays and bronchoscopy in the year immediately following service. The examiner should then provide opinions, supported by clearly stated medical reasoning, of what respiratory disorders were present in service, in years immediately following service, and in recent years, and what respiratory disorders are present now. f. The examiner should identify all current respiratory disorders. g. For each respiratory disorder the examiner diagnoses as present now or having been present in recent years, provide a separate opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder developed in service or is otherwise causally related to service. h. The examiner should also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran had a respiratory disorder in service. If the examiner concludes that a respiratory disorder was not at-least-as-likely-as-not present in service, then the examiner should provide an opinion whether any identified respiratory disorder present prior to service was aggravated (permanently increased in severity) by service, including due to exposures (such as exposure to burning oil fires) or other conditions in service. i. A rationale must be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 4. The RO/AMC must assure that the questions posed to the remand examiner have been satisfactorily addressed. 5. Thereafter, readjudicate the remanded claim de novo. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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. 2012). _________________________________________________ KATHALEEN K. GALLAGHER 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) (2012).