Citation Nr: 1305358 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 07-17 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a disorder manifested by chronic coughing and difficulty breathing (other than chronic cough with rhinitis), to include obstructive sleep apnea (OSA). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to July 1974. This included service in the Republic of Vietnam from March 1966 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, dated in April 2006. Service connection for coughing and breathing condition was denied therein. The Veteran appealed this determination. In December 2009, the Veteran testified regarding this matter at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board issued a remand for additional development in May 2010. Upon completion of this development, the RO issued a June 2011 rating decision granting service connection and assigned a noncompensable initial evaluation for chronic cough with rhinitis. The Board remanded this matter for additional development in June 2012. Based on review of the Veteran's claims file as well as his Virtual VA "eFolder," it again is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. 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). REMAND This matter unfortunately must be remanded once more. Although the Board sincerely regrets the further delay this will cause, adjudication cannot proceed as of yet. Additional development once again is needed. VA has a duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This duty includes making reasonable efforts to help procure pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). If a medical opinion is provided in the context of service connection, whether or not there was an obligation to do so, this duty also requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board's June 2012 remand was drafted so as to satisfy the duty to assist. However, there has not full or even substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) ("a remand by . . . the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders"); Dyment v. West, 13 Vet. App. 141 (1999) (another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). I. Records With respect to records in Federal custody, reasonable efforts consist of making as many requests as are necessary to obtain them. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). These requests may cease, however, if it is concluded that the records do not exist or that further requests for them would be futile. Id. With respect to VA generated records in Federal custody, VA has constructive notice because they plausibly could be expected to be among the evidence. Bell v. Derwinski, 2 Vet. App. 611 (1992). Such records thus are constructively among the evidence before the Board even where they are not actually among the evidence before the Board. Id. Notification to the Veteran of the inability to obtain records must be made. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). Such notification shall identify the records at issue, explain the efforts made to obtain them, describe any further efforts that will be made to obtain them, and inform the Veteran that he ultimately is responsible for providing the records. 38 C.F.R. § 3.159(e)(1) (2012). In June 2011, VA treatment records from the VA Medical Center (VAMC) in Atlanta, Georgia, dated into November 2006 were obtained. In addition, one October 2010 VA treatment record was obtained. The Board directed in its June 2012 remand that reasonable attempts be made to obtain outstanding treatment records concerning the Veteran's claimed respiratory disorder from the aforementioned VA facility for the period from June 2010 (it is obvious that this is a typographical error and the Board meant June 2011) to present. The Board further directed, if these records could not be obtained, that a formal finding be issued as to them not existing or the futility of further efforts to obtain them, and that the Veteran be notified of the attempts made and why further attempts would not be made as well as allowed an opportunity to submit the records himself. Treatment records concerning the Veteran's claimed respiratory disorder for the period from June 2010 (due to the Board's typographic error) to present was requested from the Atlanta, Georgia, VAMC by the AMC in July 2012. An identical request was made in August 2012. It was indicated on both requests that "a negative response is needed." No records were received. No reply was made indicating that the records could not be supplied. The AMC did not take any subsequent action. No additional requests for records were made. There was no formal finding made that they do not exist or that further efforts to obtain them would be futile. Lastly, the Veteran was not notified of VA's inability to obtain the records. He thus was not allowed an opportunity to submit them on his own behalf. So that these required actions can be undertaken, a remand is necessary. II. Medical Examination and Opinions A medical opinion is adequate when it allows the Board to perform a fully informed evaluation of the claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, it must be fully informed itself. It must be based upon consideration of the Veteran's entire medical history, in other words. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). This helps ensure that the factual premises underlying a medical opinion will be accurate, as is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be completely and clearly articulated. Stefl, 21 Vet. App. at 120; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was afforded a VA examination in September 2010. Chronic cough with dyspnea was diagnosed by the examiner. In a December 2010 addendum, the examiner determined that this condition was due to a combination of postnasal drip and reactive airway disease. Service connection was granted for chronic cough with rhinitis, as noted above, on the basis of the examiner's opinion that the Veteran's postnasal drip and rhinitis onset during his service. The examiner did not opine as to whether there was a service etiology for reactive airway disease. As such, the Board directed in its June 2012 remand that an appropriate VA medical opinion be obtained. Specifically, it was directed that the examiner opine as to whether it is at least as likely as not that any diagnosed respiratory disorder is casually related to the Veteran's service, to include his presumed herbicide exposure therein, or was caused or is aggravated by his service-connected chronic cough with rhinitis. Rationale was to be provided for each opinion rendered. It also was directed that the examiner acknowledge and discuss the medical evidence, such as post-service VA and private treatment records and the 2010 VA examination with addendum, and lay (non-medical) evidence, such as the Veteran's recount of chronic cough since service. The examiner further was directed to acknowledge and discuss the causal relationship between his claimed respiratory disorder and herbicide exposure and between this disorder and his service-connected disability. In this latter regard, the National Center for Biotechnology Information (NCBI) abstract concerning rhinitis and sleep apnea was to be considered. In July 2012, a VA medical opinion was rendered following review of the Veteran's claims file. The Veteran was diagnosed as having OSA, restrictive lung disease, and chronic non-productive cough. The examiner opined regarding the OSA that it is less likely as not in any way associated with his service-connected chronic cough with allergic rhinitis disability and is not caused by Agent Orange exposure. It was noted in this regard that "there is no medical research relating Agent Orange to either sleep apnea or chronic cough. Also[,] there is no research linking cough or allergic rhinitis to sleep apnea." Finally, the examiner opined regarding chronic non-productive cough that it is less likely as not associated with his OSA but rather is very likely caused by either his restrictive airway disease or reflux. Noted in this regard was that "there is no research that shows that reflux or allergic rhinitis is caused by Agent Orange exposure." An opinion regarding every diagnosed respiratory disorder was not rendered. There are opinions for OSA and chronic non-productive cough, but there is no opinion for restrictive lung disease. Neither the opinions for OSA nor the opinion for chronic non-productive cough considered whether there was a causal relationship to the Veteran's service other than through his presumed herbicide exposure. The opinion concerning chronic non-productive cough further did not address a causal or aggravation relationship to his service-connected chronic cough with rhinitis. In sum, the opinions are incomplete. The rationale for the opinions was not also clearly articulated. No real explanation was provided as to the basis for any of the negative opinions rendered. All that was noted was a lack of medical research supporting a positive opinion. Yet the NCBI abstract was not discussed, which seems to suggest a correlation between rhinitis and sleep apnea. Indeed, it was not even referenced. None of the medical evidence or the lay evidence was referenced either. It thus cannot be determined whether the Veteran's entire medical history was considered, notwithstanding that it was noted that his claims file was reviewed. To cure these problems, a new VA opinion is needed on remand. Another interview or examination of the Veteran need not take place prior to rendering this new opinion unless the examiner deems it necessary. (CONTINUED NEXT PAGE) 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) (2011). Expedited handling is requested.) 1. Make reasonable efforts to obtain treatment records for the period from June 2011 to the present regarding the Veteran from the VAMC in Atlanta, Georgia. All records obtained shall be associated with the claims file. If records cannot be obtained, a formal determination shall be made to the effect that they do not exist or that further efforts to obtain them would be futile. Notice shall be provided to the Veteran of such a determination. Specifically, such notification shall identify the records, explain the efforts made to obtain them, describe any further efforts that will be made to obtain them, and inform the Veteran that he ultimately is responsible for providing the records. Document the claims file as appropriate regarding this paragraph. 2. After completion of the above development, arrange for another opinion to be provided regarding the Veteran's disorder manifested by chronic coughing and difficulty breathing (other than chronic cough with rhinitis), to include OSA. The claims file and pertinent documents in the Virtual VA "eFolder" shall be made available to and reviewed by the examiner. If deemed necessary, arrangements shall be made for the Veteran to be interviewed again regarding his relevant history and symptomatology and/or physically assessed again inclusive of tests/studies. The examiner thereafter shall opine, for each diagnosed respiratory disorder (other than chronic cough with rhinitis), as to whether it is at least as likely as not (a 50 percent or greater probability) that it: (a) is related to his service, to include his presumed exposure to an herbicide agent such as Agent Orange or otherwise, (b) was proximately caused by, due to, or the result of his service-connected chronic cough with rhinitis, or (c) is proximately aggravated (worsened beyond natural progression) by his service-connected chronic cough with rhinitis. If aggravation is found, the examiner finally shall opine as to: (a) the baseline level of disability prior to the aggravation and (b) the current level of disability so that the amount of disability attributable solely to the aggravation may be determined. A complete and clear rationale (explanation why) shall be provided for each opinion. The opinion must include a thorough discussion of the pertinent medical evidence (service, VA, and private records, the September 2010 VA examination and December 2010 addendum thereto, the July 2012 VA opinion, and the NCBI abstract) and non-medical or lay evidence (statements from the Veteran and individuals who know him). Chronicity and continuity of symptomatology therefore specifically shall be addressed. Discussion of pertinent medical facts and principles concerning the development, onset, etiology, etc., of applicable respiratory disorders also shall be made as necessary. If discussion is made of pertinent medical literature, a citation is required. If an opinion cannot be provided without resort to mere speculation, a complete and clear rationale (explanation why) shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is the result of a need for additional information or of the limits of current medical knowledge having been exhausted. 3. Finally, readjudicate the Veteran's entitlement to service connection for a disorder manifested by chronic coughing and difficulty breathing (other than chronic cough with rhinitis), to include OSA. If this benefit is not granted, he and his representative shall be provided with a supplemental statement of the case (SSOC) and afforded the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." The Veteran has the right to submit additional evidence and argument on the issue 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). _________________________________________________ MICHAEL A. HERMAN 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).