Citation Nr: 1310647 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 09-16 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1970 to January 1972, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied, in pertinent part, the Veteran's claim of service connection for allergic rhinitis. The Veteran disagreed with this decision in June 2008. He perfected a timely appeal in February 2009. In January 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The appeal is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred allergic rhinitis during active service. He alternatively contends that his allergic rhinitis existed prior to service and was aggravated (or permanently worsened) beyond the natural progression of this disease as a result of his active service. Unfortunately, the Board finds that additional development is required before this claim can be adjudicated on the merits. In its January 2012 remand, the Board found that a January 2009 VA examination report (the only VA examination of record addressing the Veteran's allergic rhinitis) was inadequate for purposes of adjudicating the currently appealed claim. See Board remand dated January 24, 2012, at pp. 4. The Board specifically noted that this examination report was inadequate because it did not contain a rationale for the VA examiner's opinion that the Veteran's allergic rhinitis was less likely than not permanently aggravated by active service. Id.; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding medical opinion without rationale does not provide adequate basis for deciding service connection claim). The Board also found in its January 2012 remand that there was a June 2008 opinion from the Veteran's private physician indicating that the symptomatology associated with the Veteran's allergic rhinitis worsened while he was on active service in the Republic of Vietnam. The Board concluded that, on remand, the January 2009 VA examination should be returned to the examiner who conducted it for an addendum which included a complete rationale for her prior etiological opinion and to comment on the June 2008 private opinion and the Veteran's assertions regarding his allergic rhinitis, to include his assertion that a lack of in-service allergy shots permanently worsened his allergic rhinitis. Id. A review of the February 2012 addendum, obtained in response to the Board's January 2012 remand, indicates that the VA clinician who provided this addendum did not answer all of the questions asked in the Board's January 2012 remand. The VA clinician who completed the February 2012 addendum checked a box indicating that the Veteran's claims file had been reviewed. This clinician then checked a box stating, "The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness." She provided the following rationale: I found no evidence that the [Veteran's] allergies progressed more than...what is expected for the natural progression of allergies. Medical evidence does not support that the lack of allergy shots in the service would cause worsening of the underlying pathology of allergic rhinitis beyond its natural progression. The [Veteran] had temporary intermittent flare-ups of the allergic rhinitis symptoms in service. In a February 2013 Informal Hearing Presentation submitted to the Board, the Veteran's service representative contended that the February 2012 addendum was inadequate. The representative initially asserted that this addendum was inadequate because it did not comply with the Board's remand instructions that an addendum be provided by the same VA clinician who conducted the Veteran's January 2009 VA examination for allergic rhinitis when, in fact, the February 2012 addendum was provided by a different VA clinician. See Informal Hearing Presentation dated February 14, 2013, at pp. 4. The representative also asserted that the February 2012 addendum was inadequate because it did not address the June 2008 private opinion concerning the worsening of the Veteran's allergic rhinitis while he was on active service in the Republic of Vietnam. Id., at pp. 5. The Board agrees in part and disagrees in part with the arguments presented by the Veteran's service representative in the February 2013 Informal Hearing Presentation. With respect to the representative's assertion that the February 2012 addendum is inadequate because it failed to comply with the Board's remand directive that the claims file be returned to the VA clinician who conducted the Veteran's January 2009 VA examination for an addendum, the Board notes that, in its January 2012 remand, it stated, "Forward the Veteran's claims file to the physician who conducted the January 2009 VA examination (or to a different physician if the January 2009 VA physician is unavailable)...." See Board remand dated January 24, 2012, at pp. 5 (emphasis added). In other words, in its January 2012 remand, the Board allowed for the possibility that, if the VA clinician who conducted the Veteran's January 2009 VA examination was unavailable, a different VA clinician could provide the requested addendum. It appears that the February 2012 addendum was provided by a different VA clinician than the clinician who conducted the January 2009 VA examination. Given the foregoing, the Board finds that the representative's argument that the February 2012 addendum is inadequate because it was not provided by the same VA clinician who conducted the Veteran's January 2009 VA examination to be without merit. By contrast, with respect to the representative's assertion that the February 2012 addendum is inadequate because the VA clinician who provided it did not answer all of the questions asked in the Board's January 2012 remand, the Board agrees. As noted above, in its January 2012 remand, the Board asked the VA clinician to provide an addendum to the January 2009 VA examination report. The Board specifically asked the VA clinician to discuss: the June 2008 private opinion which indicates that the Veteran's symptoms got much worse while he was in Vietnam [] and whether such symptoms, as mentioned in the private opinion, represent a permanent worsening of the underlying pathology of the Veteran's allergic rhinitis, beyond its natural progress, as opposed to temporary or intermittent flare ups of his allergic rhinitis symptoms. See Board remand dated January 24, 2012, at pp. 5-6. As also noted above, the VA clinician who provided the February 2012 addendum did not address the June 2008 private opinion at all. Having reviewed the record evidence, the Board finds that there is insufficient evidence to adjudicate the Veteran's service connection claim for allergic rhinitis. The Board specifically finds that the January 2009 VA examination and the February 2012 addendum are inadequate for purposes of determining whether the Veteran's allergic rhinitis existed prior to service and was aggravated (or permanently worsened) beyond the natural progression of this disease by service. The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also 38 C.F.R. § 4.2 (2012). Given the deficiencies in the February 2012 addendum, the Board finds that, on remand, the claims file should be sent back to the VA clinician who prepared this addendum in order for her to provide another addendum in which she addresses the June 2008 private opinion and answers all of the questions asked in the Board's January 2012 remand. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO/AMC to re-certify this appeal to the Board in March 2012 without complying with the January 2012 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the VA Outpatient Clinic in Rochester, New York, and request that the VA clinician who completed a VA Disability Benefits Questionnaire (DBQ) Medical Opinion on February 10, 2012, provide an addendum to this opinion. The claims file and a copy of this remand must be sent to this VA clinician for review. Based on a review of the claims file, to include a June 2, 2008, letter from Donald W. Pulver, M.D., this VA clinician is asked to state whether the symptoms of the Veteran's allergic rhinitis mentioned in Dr. Pulver's letter represent a permanent worsening of the underlying pathology of the Veteran's allergic rhinitis, beyond its natural progress, or whether they represent temporary or intermittent flare ups of his allergic rhinitis symptoms. A complete rationale must be provided for any opinions expressed. 2. If, and only if, the VA clinician who completed the VA DBQ Medical Opinion on February 10, 2012, is not available, then schedule the Veteran for appropriate in-person examination to determine the nature and etiology of his allergic rhinitis. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that allergic rhinitis, if diagnosed, is related to active service or any incident of service. The examiner also is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that allergic rhinitis, if diagnosed, existed prior to service and was aggravated (or permanently worsened) beyond the normal progression of this disease during active service. In providing the requested etiological opinions concerning the Veteran's allergic rhinitis, the examiner is asked to comment on: (a) the Veteran's assertion that he did not receive regular allergy shots during active service and whether this lack of regular in-service treatment (allergy shots) caused a worsening of the underlying pathology of his allergic rhinitis, beyond its natural progress, versus temporary or intermittent flare-ups of his allergic rhinitis symptoms; and (b) the June 2008 private opinion from Donald W. Pulver, M.D., which indicates that the Veteran's allergic rhinitis symptoms worsened significantly while he was on active service in the Republic of Vietnam and whether the symptoms discussed in Dr. Pulver's opinion represent a permanent worsening of the underlying pathology of the Veteran's allergic rhinitis, beyond its natural progress, versus temporary or intermittent flare-ups of his allergic rhinitis symptoms. The clinician must address both parts of this question in the examination report. A complete rationale must be provided for any opinions expressed. 3. The Veteran should be given adequate notice of the requested examination, if scheduled, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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).