Citation Nr: 1307963 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-18 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for restless leg syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from September 1981 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Although the RO framed the issue on appeal as entitlement to service connection for asthma, a review of the record indicates that the Veteran was also diagnosed with bronchitis and allergic rhinitis. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized the issue as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim for a respiratory disability in keeping with the Court's holding in Clemons. A personal hearing was held in August 2009 at the Salt Lake City RO before the Decision Review Officer (DRO) and a copy of the Informal Conference Report is in the claims file. For the reasons set forth below, 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 seeks service connection for a respiratory disorder, obstructive sleep apnea and restless leg syndrome. He claims that he developed these disabilities while he was on active duty. Specifically, the Veteran contends that he developed these disorders as a result of his in-service exposure to burning oil wells during his period of service and while participating in Operation Desert Shield/ Storm. See e.g. June 2008 and September 2008 claims, and May 2009 substantive appeal. Preliminarily, the Board notes that the Veteran has submitted additional evidence in the form of VA treatment records dated from August 2001 to July 2003 after the issuance of the March 2009 Statement of the case (SOC). In addition, VA medical records dated from August 2001 to May 2012 have been scanned into the Virtual VA claims processing system after the March 2009 SOC. While some of these records are duplicative of evidence already associated with the claims folder, the majority of these records are new and have not been reviewed by the Agency of Original Jurisdiction (AOJ). Neither the Veteran, nor his representative, has specifically stated that he was waiving consideration of the additional evidence by the AOJ. Pursuant to 38 C.F.R. § 20.1304(c), any pertinent evidence submitted by the Veteran or his representative must be referred to the AOJ for initial review, unless this procedural right is waived by the appellant or his representative, or unless the Board determines the benefit sought can be allowed on appeal without such a referral. In December 2012, the Board sent the Veteran a letter and asked him whether he wished to waive his right to an initial review of the evidence by the AOJ. The Veteran did not submit a response to this letter. Therefore, the Board may not properly consider this evidence or issue a decision at this time, and must remand the case to allow the AOJ opportunity to review this evidence and readjudicate the Veteran's claims. See 38 C.F.R. § 19.31. See also 38 C.F.R. § 20.1304(c). The Board notes that the Veteran has offered competent statements regarding pertinent symptoms that he has experienced. Specifically, at the August 2009 hearing, the Veteran relayed a history of breathing problems since having served in Operation Desert Storm. In a July 2009 statement, the Veteran's daughter, R.B., stated that her father was on active duty when she was born, and for as long as she can remember, her father has had problems sleeping. The Veteran's DD form 214 reflects that from August 1990 to February 1991 he served in support of Operation Desert Shield/Storm, and from July 1991 to September 1991, he served in Desert Shield/Storm area of responsibility. The DD 214 also reflects that the Veteran was awarded the Southwest Asia service medal with one bronze service star. The Veteran's service treatment records reflect that he was seen at sick call in October 1990 for complaints of fatigue and a non-productive cough, and was assessed with pharyngitis. At the May 1992 separation examination, the Veteran reported a history of frequent trouble sleeping, pain or pressure in his chest, swollen or painful joints, bone, joint or other deformity, and lameness. The post-service medical evidence of record reflects multiple diagnoses of respiratory disorders, as well as diagnoses of obstructive sleep apnea and restless leg syndrome. With respect to the Veteran's sleep disorder, nocturnal polysomnography reports dated in July 2008 and August 2008 reflect that the Veteran underwent several sleep studies, the results of which revealed an impression of mild obstructive sleep apnea syndrome. Results from this study also revealed an impression of moderate periodic limb movement disorder. As for the Veteran's respiratory disorders, the post-service medical evidence of record reflects diagnoses of bronchitis, allergic rhinitis and asthma. See VA treatment records dated in May 2008 and October 2008. During the October 2008 pulmonary consultation, the VA physician noted that the Veteran had been hospitalized in June 2008 with acute onset dyspnea, at which time he had been informed that his exposure to oil smoke in the Persian Gulf may have triggered his asthma. Based on a review of the Veteran's pulmonary function tests and a chest computed tomography angiogram (CTA), the VA physician assessed the Veteran with possible asthma and possible allergic rhinitis. In the October 2008 addendum, the VA physician noted that the Veteran reported classical symptoms of obstructive sleep apnea, with many arousals attributed to restless legs. The treatment provider acknowledged the Veteran description of his in-service experiences, to include the Veteran recollection of having witnessed "black clouds of smoke whenever the oilfields were burned." However, according to the VA physician, it is unlikely that the Veteran developed asthma from such an indirect exposure. While the VA physician determined that the Veteran's asthma was not related to any in-service exposure to burning oil fields, he did not provide an explanation or rationale for his conclusion. Subsequent VA treatment records dated from January 2009 to May 2012 reflect ongoing diagnoses of asthma and bronchitis, restless leg syndrome, and normal to mild obstructive sleep apnea. The Veteran has not been afforded a VA examination in connection with his claims. VA has a duty to obtain an adequate medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; and indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, if VA undertakes to provide a medical examination, the Board must ensure that such examination is adequate. See Barr v. Nicholson, 21 Vet. 303, 311 (2007). Here, the evidence of record indicates that the Veteran has current diagnoses of asthma and bronchitis, restless leg syndrome, and obstructive sleep apnea. Service treatment records reflect that the Veteran was seen at sick call for cold and flu-like symptoms, and the May 1992 separation examination report reflects the Veteran's positive history of sleep problems. No medical opinion concerning the cause of the Veteran's respiratory disorder(s), obstructive sleep apnea and restless leg syndrome have been provided. Therefore, the Board finds that VA examinations and medical opinions are necessary for determining the nature and etiology of the Veteran's respiratory disorder(s), restless legs syndrome, and obstructive sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Request relevant records pertaining to treatment the Veteran has received for his respiratory condition, his sleep disorder and his restless leg syndrome from the VA Medical Center (VAMC) in Salt Lake City, Utah, from May 2012 to the present. All such available documents should be associated with the claims file, and all efforts to obtain the evidence must be noted it the claims folder. 2. Once these records have been obtained, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his current respiratory disorder. The claims folder, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. A notation to the effect that this review has occurred should be made in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the October 1990 sick call treatment note which documents the Veteran's reported cold and flu-like symptoms and his in-service diagnosis of pharyngitis. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current respiratory disorder(s) and provide diagnoses for all identified disabilities. The examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder(s) had its(their) clinical onset in service or is(are) otherwise related to the Veteran's military service, to include his exposure to burning oil wells while stationed in Southwest Asia. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced respiratory problems since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. 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, schedule the Veteran for a VA examination to determine the nature and etiology of any sleep disorder present. The claims folder, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. A notation to the effect that this review has occurred should be made in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the May 1992 medical history report associated with his separation examination wherein he marked to have sleeping problems. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current sleep disorder and provide diagnoses for all identified disabilities. The examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any sleep disorder had an onset in service or is otherwise related to the Veteran's military service, to include his exposure to burning oil wells while stationed in Southwest Asia. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced sleep problems since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. 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.) 4. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his restless leg syndrome. The claims folder, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. A notation to the effect that this review has occurred should be made in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of the Veteran's restless leg syndrome and determine whether this is another type of sleep disorder or a disorder of the nervous symptom. The examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any restless legs syndrome had an onset in service or is otherwise related to the Veteran's military service, to include his exposure to burning oil wells while stationed in Southwest Asia. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. 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.) 4. After completing the above, readjudicate the issues on appeal. If any of the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).