Citation Nr: 1317322 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-12 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for chronic pharyngitis. 3. Entitlement to service connection for a disability of the sciatic nerve. 4. Entitlement to service connection for a disability of the low back. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 1981 and from January 1991 to March 1991. The Veteran also had other periods of service in a reserve component. The matter was last before the Board of Veterans' Appeals (hereinafter "Board") on appeal from November 2008 and June 2009 rating decisions of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Milwaukee, Wisconsin. In November 2010, the Board, inter alia, denied the Veteran's claims for service connection. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (hereinafter "the Court"), which vacated and remanded the November 2010 to the Board by a Memorandum Decision in June 2012. 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 RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the claim that has been certified for the Board's review at this time. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure compliance with due process requirements, the Board presently remands the Veteran's claim for further development. In its June 2012 Memorandum Decision, the Court set aside the Board's November 2010 decision with respect to the Veteran's claims for service connection for a low back disability, sinusitis, pharyngitis and a sciatic nerve disability. The Veteran principally argued that the VA medical opinions upon which the Board primarily relied in issuing the denial were inadequate because they failed to provide sufficient rationale for their conclusions, rendering the Board's statement of reasons or bases inadequate. The Veteran further argued that the Board erred in its treatment of his lay evidence of continuity of symptomatology. The Court found no merit in this second argument, but agreed with the Veteran that the rationales provided in the VA medical examination reports were inadequate. The service treatment records indicate that the Veteran sought treatment for lower back pain on five different occasions from November 1978 to November 1980. Also, he complained of and was treated for sinus congestion diagnosed as viral symptoms in May 1979. He was diagnosed with pharyngitis during active duty in February 1991, as well as on two occasions during reserve duty in 1992 and 1994. The Veteran contends that his lower back disability, as well as his sinusitis and pharyngitis, had their onset in service. Shortly after his initial separation from service in July 1981, the Veteran filed his claim for a back disorder. This claim was denied for failure to report for a VA examination. In May 2008, he submitted claims for chronic sinusitis and chronic pharyngitis, and contended that his pharyngitis was caused by drainage from his sinuses and ears, both of which were treated for congestion in service. In December 2008, the Veteran also submitted his request to reopen the claim for a low back disorder, along with treatment records from 1997 as new and material evidence. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In addition to direct service connection, arthritis, a chronic disease, may be presumed to have been incurred during service if it becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. Even if the disease is not diagnosed during the presumptive period, a veteran can still receive presumptive service connection by showing, through acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree during the presumptive period, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but, in light of subsequent developments, it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required degree. 38 C.F.R. § 3.307(c). If chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Board does not refute the fact that the Veteran has current diagnoses of degenerative disc disease of the lumbar spine with referred pain to the left lower extremity, chronic sinusitis and chronic pharyngitis. Thus, the resolution of the Veteran's claims turn on consideration of the in-service medical evidence as to incurrence, and the medical evidence as to nexus. When there is evidence of both an in-service incident and a later injury, the Board's task is to decide to what extent each may have contributed to the Veteran's present disability. To the extent that it is impossible to separate the effects of a service connected disability from a non-service-connected disability, the law requires that all the symptoms be attributed to the service-connected disability. Mittleider v. West, 11 Vet.App. 181, 182 (1998). The Court has held that the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The first requirement of an adequate medical opinion is that it be based on the entire medical history and describe the condition "in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)) (internal quotation marks omitted). The Board consequently finds that a remand of the claims for service connection for chronic sinusitis, chronic pharyngitis, a sciatic nerve disability and a low back disability is necessary as there is not sufficient competent medical evidence on file to decide these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 38 C.F.R. § 3.159(c) (4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Stefl, 21 Vet. App. at 124 (2007) (holding that the Board must consider whether a medical opinion contains "such sufficient information that it does not require the Board to exercise independent medical judgment"); 38 C.F.R. § 4.2 (2012) (If an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Additionally, in September 2012, the Veteran submitted a statement from the Wisconsin Department of Administration, which appears to indicate that the Veteran claimed a work injury related to his feet and ankles. Given that the Veteran requests service connection for a sciatic nerve disorder, records concerning any Workmen's Compensation claim may be relevant to this claim and an attempt should be made to obtain them on remand. 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. The RO/AMC should contact the Veteran and request that he provide sufficient information and authorization, to request any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of that information, seek to obtain copies of all records referred to by the Veteran not already on file, to specifically include any records pertaining to a Workmen's Compensation injury related to the feet and ankles. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and identify the specific records the RO/AMC is unable to obtain; briefly explain the efforts that the RO/AMC made to obtain those records; describe any further action to be taken by the RO/AMC with respect to the claim; and inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The RO/AMC must then arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the nature and etiology of any current sinus disorder. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests are to be performed, and a comprehensive social, educational and occupational history is to be obtained. After reviewing the claims files, the examiner should provide an opinion with clear explanation and supporting rationale as to whether or not any sinus disorder diagnosed during the pendency of this claim is it at least as likely as not (50 percent probability or more) etiologically related to the Veteran's active duty service. This relationship may be established if it is determined that the condition was first incurred in service, was aggravated by service, or was caused by an incident or injury of service. In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 3. The RO/AMC must then arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the nature and etiology of any current chronic pharyngitis. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests are to be performed, and a comprehensive social, educational and occupational history is to be obtained. After reviewing the claims files, the examiner should provide an opinion with clear explanation and supporting rationale as to whether or not any chronic pharyngitis diagnosed during the pendency of this claim is it at least as likely as not (50 percent probability or more) etiologically related to the Veteran's active duty service. This relationship may be established if it is determined that the condition was first incurred in service, was aggravated by service, or was caused by an incident or injury of service. The examiner is asked to specifically comment on the various theories of causation that the Veteran has described, including as secondary to gastroesophageal reflux disease (hereinafter "GERD") as secondary to non-steroidal anti-inflammatory drug (hereinafter "NSAIDS") treatment for low back pain; or, as secondary to sinusitis. In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 4. The RO/AMC must then arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the nature and etiology of any current sciatic disorder. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests are to be performed, and a comprehensive social, educational and occupational history is to be obtained. After reviewing the claims files, the examiner should provide an opinion with clear explanation and supporting rationale as to whether or not any sciatic disorder diagnosed during the pendency of this claim is it at least as likely as not (50 percent probability or more) etiologically related to the Veteran's active duty service. This relationship may be established if it is determined that the condition was first incurred in service, was aggravated by service, or was caused by an incident or injury of service. In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 5. The RO/AMC must then arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the nature and etiology of any current low back disorder. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests are to be performed, and a comprehensive social, educational and occupational history is to be obtained. After reviewing the claims files, the examiner should provide an opinion with clear explanation and supporting rationale as to whether or not any low back disorder diagnosed during the pendency of this claim is it at least as likely as not (50 percent probability or more) etiologically related to the Veteran's active duty service. This relationship may be established if it is determined that the condition was first incurred in service, was aggravated by service, or was caused by an incident or injury of service. In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 6. After completing all indicated development to the extent possible, the RO/AMC must consider all of the evidence of record and readjudicate the matters remaining on appeal. The Board reminds the RO/AMC that a pending claim reasonably encompasses a claim for benefits for a causal disease or disability, DeLisio v. Shinseki, 25 Vet.App. 45 (2011), and advises the RO/AMC to carefully consider the Veteran's assertions and the clinical record when adjudicating these matters, particularly with respect to the chronic pharyngitis and its relationship to GERD and the Veteran's low back disorder. Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing. See Schroeder v. West, 212 F.3d 1265, 1271 (Fed.Cir.2000); Robinson v. Peake, 21 Vet.App. 545, at 552 (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim"); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir.2001); Brokowski, 23 Vet.App. at 85. If any benefit sought is not granted, the RO/AMC must issue an SSOC and allow the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ KELLI A. KORDICH Acting 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).