Citation Nr: 1321196 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 10-01 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for asthma, including as due to bilateral tinea pedi/unguium (claimed as bilateral foot fungus). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the Veteran's initial claim was for direct service connection for asthma. However, in March 2013, the Veteran raised a secondary service connection claim for asthma due to his service-connected bilateral tinea pedi/unguium. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Board has recharacterized the claim as entitlement to service connection for asthma, including as due to bilateral tinea pedi/unguium (claimed as bilateral foot fungus), as styled on the title page. In March 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing at the RO. The recorded testimony was lost so no transcript of the hearing was created. The Veteran was provided with the option of having a new hearing scheduled; however, in a March 2013 letter, the Veteran declined a new hearing. Thus, the Board may proceed with the case. 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 While further delay is regrettable, the Board observes that further development is required prior to adjudicating the Veteran's claim. In February 2008, the Veteran filed his claims for entitlement to service connection for asthma and bilateral foot fungus. The RO denied those claim on a direct basis in the June 2008 rating decision. In an October 2012 rating decision, the RO considered the results of a June 2012 examination and granted service connection for bilateral tinea pedi/unguium (claimed as bilateral foot fungus). In March 2013, the Veteran raised the issue of entitlement to service connection for asthma as secondary to his service-connected bilateral tinea pedi/unguium. In June 2012, the Veteran was afforded an examination for VA and diagnosed with asthma. The examiner opined that it was less likely than not that the Veteran's asthma was incurred in or caused by service as there was no evidence of asthma or chronic obstructive pulmonary disease documented in the Veteran's service treatment records. However, the examiner did not address the significance of the various instances in the Veteran's service treatment records (STRs) where he sought treatment for colds and the impression was an upper respiratory infection (URI). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (an adequate medical opinion must consider all relevant records in the VA claims file so that the opinion is fully informed). Specifically, the Veteran's STRs show no history of asthma or chronic colds prior to service, but a January 1974 complaint of a cold and sore throat with an impression of a URI, an August 1975 complaint of a cold with an impression of a URI, a November 1975 complaint of throat pain, a June 1976 complaint of a cold, a November 1976 complaint of a cough and runny nose with an impression of a URI, and a June 1977 Report of Medical History, wherein the Veteran notes a history of chronic or frequent colds. Additionally, the examiner did not provide an opinion addressing secondary service connection or aggravation. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran submitted a February 2013 letter from Dr. A. M. M. of the Norfolk Community Health Center. Dr. M. stated that a review of the medical literature finds that foot fungus can serve as a chronic allergen for asthma. The Veteran has an eosinophilia in his blood work, indicating an allergic basis to his asthma. The doctor reviewed the Veteran's STRs, which document the Veteran's frequent treatment for cold symptoms. Dr. M. extrapolated that the Veteran's chronic and frequent colds in-service "could have" represented a "possible" allergic component to the Veteran's foot fungus. The doctor attached several medical articles discussing a link between asthma and foot fungus. This medical opinion suggests causation, but is not sufficient to establish service connection. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). The medical evidence of record is inadequate to decide the claim. The Veteran should be afforded another examination to address both direct and secondary service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice regarding the claim of service connection for asthma as secondary to service connected bilateral tinea pedi/unguium (claimed as bilateral foot fungus). 2. After completion of the above, return the claims folder to the physician who examined the Veteran in June 2012, if available, for an addendum medical opinion. If that examiner is unavailable or determines that an opinion cannot be provided without an examination, schedule the Veteran for an appropriate examination. The claims file, to include a copy of this Remand, must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. Based on the examination and review of the record, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any current asthma was incurred in or aggravated by service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any current asthma was caused by his service-connected bilateral tinea pedi/unguium? (c) Is it at least as likely as not that the Veteran's service-connected bilateral tinea pedi/unguium aggravated any current asthma? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of asthma (i.e., a baseline) before the onset of the aggravation. In rending these opinions, the examiner should address the significance of the Veteran's STRs that show a January 1974 complaint of a cold and sore throat with an impression of a URI; an August 1975 complaint of a cold with an impression of a URI; a November 1975 complaint of throat pain, a June 1976 complaint of a cold; a November 1976 complaint of a cough and runny nose with an impression of a URI, and a June 1977 Report of Medical History, noting a history of chronic or frequent colds. The examiner should also address the Veteran's report of seeking treatment for his chronic colds immediately after discharge; Dr. R. C. R.'s statement that he treated the Veteran for asthma in approximately 1978; Dr. A. M. M's February 2013 opinion and the medical literature attached to the February 2013 private opinion that discusses the nexus between asthma and foot fungus. A complete and detailed rationale should be given for all opinions and conclusions expressed. Note: if the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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 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). _________________________________________________ M. E. LARKIN 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).