Citation Nr: 1304741 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 07-08 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Todd S. Hammond, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1960 to November 1961. These matters initially came before the Board of Veterans' Appeals (Board) on an appeal from an October 2005 rating decision that was issued by the Regional Office (RO) in Denver, Colorado. The file was thereafter transferred to the RO in Portland, Oregon. The case was remanded by the Board in June 2010 to enable the Veteran to appear at a personal hearing before a Veteran's Law Judge. A hearing before the undersigned was held in September 2010. A copy of the transcript of that hearing is contained within the claims file. Thereafter, the case was remanded a second time in December 2010, to provide the Veteran with an examination to determine the etiology of her claimed disabilities. The case was remanded a third time in April 2012, to further address the preexisting nature of the Veteran's respiratory/pulmonary disability, and whether that disability was aggravated during service. Unfortunately, the Board must again remand the Veteran's appeal, as the questions presented for the examiner in the April 2012 remand have not been sufficiently addressed. The Board regrets the additional delay. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran's appeal must be remanded to obtain an addendum from the examiner who provided the July 2012 examination, as the resulting examination report failed to adequately address the questions presented in the April 2012 remand. Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. This appeal was most recently remanded in April 2012 to obtain an opinion as to whether the Veteran's preexisting respiratory/pulmonary disability was aggravated during active service. Importantly, the Board asked in the April 2012 remand "whether on the basis of the clinical record, it can be concluded with clear and unmistakable certainty that the preexisting allergy/hay fever disorder did not undergo a permanent worsening beyond that which would be due to the natural progression of the condition." This question was not addressed in the opinion obtained. Instead, the examiner discussed whether it was at least as likely as not that the preexisting respiratory disorder was aggravated during service. However, that legal standard is inapplicable to the present claim- the controlling legal standard in this case is whether the evidence clearly and unmistakably demonstrates that the condition was not aggravated during service. Thus, as this question has not yet been addressed, the appeal must be remanded for an addendum. The Board reminds the examiner, as noted in the prior remand, that the Veteran's exposure to such mold has been conceded by the Board and should be considered in any medical opinion provided. Additionally, the Board takes this opportunity to make the formal finding that, based on the evidence of record, the finding of a history of "hay fever" on the Veteran's entrance examination clearly and unmistakably represents a preexisting condition. 38 C.F.R. §§ 3.304(b), 3.306 (2012). The law provides that a Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002). A preexisting disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306. In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). Here, the Veteran's February 1960 enlistment examination indicated normal sinuses but also showed preexisting allergies (hay fever). Additionally, she noted a history of hay fever on February 1960 and November 1960 Reports of Medical History. The Board acknowledges that on a "Report of Medical History" that she prepared in September 1961, shortly before her discharge, the Veteran denied having ever had ear, nose, or throat troubles; chronic or frequent colds; sinusitis; asthma, or a chronic cough. She reported a history of hay fever, as she had noted at her entry into service. On the "Report of Medical History," the Veteran described her health as "excellent." At her separation examination, which also took place in September 1961, her nose, sinuses, mouth, throat, lungs, and chest were all normal. The Veteran contends she developed sinus infections while she was living in moldy barracks in service. She submitted a letter from her private physician who opined that it was "more likely than not that [the Veteran's] sinus infections began during her active duty period in the Air Force when she was quartered in a mold ridden WWII barrack for 6 months and became ill during that time." He opined that the Veteran's asthma and COPD were likely "related" to her sinus problems. While this physician associated the Veteran's asthma and COPD with her service, his opinion was based, in part, on the Veteran's report that her sinus problems onset during her service. The Veteran submitted a letter from her mother referencing a "virus attack" that the Veteran reportedly experienced after her marriage during service, the Veteran would not have been living in the same allegedly moldy barracks after her marriage. Additionally, the Board acknowledges that the Veteran's ex-husband submitted a written statement indicating that the Veteran had sinus problems since they met in service. In light of the above, the Board remanded the matter in December 2010 to obtain an opinion as to whether the Veteran's hay fever, noted on entry, represents a preexisting respiratory/pulmonary disability and if so, whether such condition was aggravated during active service. VA provided the Veteran with an examination in November 2011, and obtained an addendum opinion dated in January 2012 related to that examination. The examiner pointed out that the Veteran's allergies preexisted service, as they were clearly noted by the examiner on her induction examination dated February 1960. Also noted, her tonsils and adenoids were enucleated prior to service. The examiner opined that chronic sinusitis is the underlying cause of her asthma and COPD symptoms. The examiner further opined that the Veteran's allergies have been involved in the etiology of the Veteran's claimed respiratory symptoms, and that her allergies (hay fever) were noted on her induction examination as beginning ten years prior to service to her present COPD. Another opinion was obtained in July 2012 concerning whether the hay fever noted on entry represented a preexisting respiratory/pulmonary disability. The July 2012 examiner provided further detail in explaining why the Veteran's respiratory/pulmonary condition preexisted service. The examiner noted, in addition to the hay fever findings on the Veteran's entrance examination, a 1989 treatment note that described a "history of asthma since the age 10," and an April 1971 treatment report that documented the Veteran's first allergic reaction as having occurred at age 4. The examiner stated that "[t]he entries throughout the available medical records consistently indicate that the [V]eteran was diagnosed with an upper respiratory allergic condition at varying times prior to service, thus categorizing it as a pre-existing condition." The examiner opined that the Veteran's asthma with COPD derives from chronic sinusitis that is due to a hypersensitivity reaction from her immune system/genetics. Later in the July 2012 report, the examiner provided the following in support of the finding that the respiratory/pulmonary disability preexisted service: Sinuses are part of the upper respiratory (airway) system, thus allergies (hay fever) are within the scope of reactive airway disease and can initially manifest in the sinuses flaring with periods of remission. This disorder can be self limiting or eventually progress to encompass more severe consistent symptoms seen with the [V]eteran's asthma with resulting COPD symptoms. Therefore, the indication of hay fever on entrance exam signifies the [V]eteran had [a] pre-existing allergic condition of the upper respiratory system. Despite the Veteran's contentions that her respiratory/pulmonary condition began during service, the Board finds that the January 2012 and July 2012 opinions, taken together provide overwhelmingly clear and unmistakable evidence that the Veteran had a preexisting respiratory/pulmonary disability. 38 C.F.R. § 3.304(b). The opinions provided draw a clear line from the reports of allergies/hay fever from when the Veteran was aged 4 and 10, to the documentation of hay fever on the Veteran's entrance examination, and finally to the present disabilities. There is no medical evidence to the contrary, and the opinions are well-supported in this regard. The remaining question, therefore, is whether there is clear and unmistakable evidence that the preexisting respiratory/pulmonary disability, manifested by allergies/hay fever, did not worsen during the Veteran's military service. 38 C.F.R. § 3.306. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file to the examiner who provided the July 2012 examination report. The examiner should review this Remand and the July 2012 report, and provide an opinion as to whether it can concluded with clear and unmistakable certainty that the preexisting allergy/hay fever disorder did not undergo a permanent worsening beyond that which would be due to the natural progression of the condition. If the July 2012 examiner is no longer available, the RO/AMC should obtain the requested opinion from a medical professional with comparable qualifications. Only if another examination is deemed necessary to obtain the requested opinion should further examination be provided. The examiner should provide a complete rationale for his or her conclusions. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner should state why this is the case in the report. 2. After completion of the above development, the Veteran's claims should be readjudicated. If the determinations remain adverse to the Veteran, she and her representative should be furnished with a supplemental statement of the case and given an 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). _________________________________________________ ERIC S. LEBOFF 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).