Citation Nr: 1321271 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 07-17 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation higher than 20 percent for degenerative disc disease, residuals, spondylolisthesis with posterior disc bulge L5-S1. 2. Entitlement to an initial compensable evaluation for bilateral pes planus. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for right ear hearing loss. 5. Entitlement to service connection for asthma. 6. Entitlement to service connection for residuals of cervical segmental dysfunction, claimed as a cervical spine condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from August 1999 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, granting service connection for lower back and bilateral pes planus disabilities, from which the Veteran appealed the initial assigned ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The RO also denied service connection for migraine headaches, bilateral hearing loss, asthma, and residuals of cervical segmental dysfunction, claimed as a cervical spine condition. The Veteran was to be afforded a March 2012 videoconference hearing. However, she did not report on the scheduled hearing date. As the Veteran has not requested to reschedule the proceeding, her hearing request must be deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). In May 2012, the Board remanded this case for additional development. Specifically the Veteran was to be afforded an examination to address the present severity of her back and pes planus disabilities. She also was to be afforded examinations to address the etiology of her migraine headaches, bilateral hearing loss, asthma, and cervical spine disability. Unfortunately, with the exception of the examination for hearing loss, the Veteran did not attend any of the scheduled examinations. The case is now returned for appellate review. In February 2013, the RO granted service connection for left ear hearing loss. As this issue has been granted in full, there remains no case or controversy for the Board to decide regarding the issue of service connection for left ear hearing loss. For this reason, the service connection claim for left ear hearing loss is dismissed for lack of jurisdiction. The issue on appeal has been modified to reflect only the issue of service connection for hearing loss in the right ear, as noted on the first page of this decision. The issues of entitlement to service connection for right ear hearing loss and migraine headaches, and increased ratings for disabilities of the lumbar spine and pes planus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt, the evidence demonstrates that the Veteran's asthma was incurred coincident with her service. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). As for the service connection claim for asthma, in this decision, the Board grants service connection for this claim. Other than the issues addressed in the remand section below, this award represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303. Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. The third Barr/Savage element is not equivalent to the third Shedden/Caluza element, as requiring medical nexus evidence under 38 C.F.R. § 3.303(b) would nullify that regulation. Id. at 497. However, it does not follow that any present disability is necessarily related to any demonstrated continuous symptomatology. Id. Therefore, in Savage, the Court held that competent evidence is required to demonstrate a relationship between the continuous symptoms and the presently diagnosed disability. Id. (explaining that "medical evidence is required to demonstrate such a relationship unless such a relationship is one to which a layperson's observation is competent"). The U.S. Court of Appeals for the Federal Circuit has held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks service connection for asthma. Review of the service treatment records indicates that the Veteran's February 2004 Medical Board report (dated about six months prior to separation) expressly mentioned a diagnosis of asthma. The Veteran reported having asthma with shortness of breath that was relieved with an inhaler. She also complained of shortness of breath in cold water and after running. Two months later in April 2004, in her Rebuttal for Medical Evaluation Board, the Veteran indicated amongst a list of medical conditions "asthma, never treated and diagnosed." After service, on an April 2005 VA Compensation and Pension examination for general medical evaluation, in regard to claimed service connection for asthma, the Veteran stated she had recently been diagnosed with this condition. Her reported symptoms consisted of occasional shortness of breath and wheezing, which was worse with cold weather. She stated that she took an inhaler which had improved her symptoms. A physical exam was completed. The overall diagnostic impression included asthma. According to the VA examiner, the Veteran recently developed asthma, but this problem was well-controlled with inhalers. The examiner opined that the Veteran's asthma was not likely related to her military service history. A June 2006 VA outpatient treatment record also notes that the Veteran had a history of asthma that developed in 2004. She used an albuterol rescue inhaler only once or twice a week or less. The Board remanded this case in May 2012 finding that a new examination should be ordered with consideration of the Veteran's asthma in service. However, the Veteran did not attend her scheduled examination or submit a request to reschedule. Therefore, the claim must be decided based on the evidence of record. 38 C.F.R. § 3.655 (b). The record shows that the Veteran's asthma was diagnosed in service. After the Veteran's separation from service in October 2004, eight months later in April 2005, the Veteran underwent evaluation, which showed that she still had asthma. In 2006, it was mentioned that she continued to be treated for asthma with regular use of an inhaler. Based on these facts and evaluation of 38 C.F.R. § 3.303(a), the record shows the Veteran's asthma was incurred coincident with service and that it persisted after service. While the VA examiner in April 2005 found that the Veteran's asthma was not related to service, no rationale was provided, which is particularly troublesome as the other medical evidence of record actually supports that the Veteran's asthma was incurred coincident with service. While her asthma is shown to be well-controlled with inhalers, the issue of service connection does not address the present severity of the disorder; that is left for deciding the appropriate disability rating. As such the April 2005 opinion is not entitled to any weight. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, based on the evidence of record, the Board resolves any doubt in the Veteran's favor and finds that service connection for asthma is warranted. 38 C.F.R. §§ 3.303(a), 3.102. ORDER Entitlement to service connection for asthma is granted. REMAND The issue of entitlement to service connection for bilateral hearing loss was originally on appeal. As noted in the introduction, however, the RO granted service connection for left ear hearing loss in a February 2013 rating decision. The RO decision noted that the decision represented a grant that was considered to be a full and final determination of the issue on appeal. However, the issue of service connection for right ear hearing loss was not granted in the February 2013 rating decision, nor was this issue addressed in the February 2013 supplemental statement of the case. As a September 2012 VA audiological examination report had been provided since the last supplemental statement of the case in August 2009, the RO should have readjudicated this matter in a supplemental statement of the case. The RO noted in the February 2013 rating decision that the September 2012 VA examination report showed that the Veteran's right ear hearing loss was normal, but did not expressly adjudicate this issue. Because of this, the issue of service connection for right ear hearing loss must be sent back to the RO for issuance of a supplemental statement of the case. See 38 C.F.R. § 20.1304(c). The RO also attempted to substantiate the Veteran's service connection claims for migraine headaches and a cervical spine disability and increased rating claims for a lumbar spine disability and pes planus by scheduling her for VA examinations. The Veteran was scheduled for May 2012 VA examinations and provided with a notice letter in May 2012 that when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied. See 38 C.F.R. § 3.655(b). Moreover, the letter noted that examples of "good cause" for failure to report for a VA examination include illness or hospitalization of the claimant and death of an immediate family member. See 38 C.F.R. § 3.655(a). After the Veteran did not show up for the first VA examinations in May 2012, the RO contacted her and she said that she had moved. The RO told the Veteran that her examinations would be rescheduled and that she needed to make sure she attended these examinations. Thereafter, the Veteran was scheduled for and attended a September 2012 audio examination, but she did not attend examinations that were scheduled in November 2012. There is a handwritten note on an examination schedule printout noting that the Veteran was notified of the November 2012 examinations but failed to report or contact VA. Notice of the examinations in November 2012 is not documented in the file, however. Thus, there is no way for the Board to determine whether the notice letter was sent to the Veteran's last known address. In February 2013, the Veteran notified VA that she had moved again. On remand, a copy of the notice letter that was sent to the Veteran regarding her November 2012 scheduled examinations should be added to the file. Given the Veteran's frequent moves and the possibility of her not getting proper notice of the time and place of her VA examinations, she should be rescheduled. A notice letter notifying the Veteran of the date and time of the examinations must be included in the file along with notice of the consequences for her failure to report for the examinations. Accordingly, the case is REMANDED for the following action: 1. Associate with the file a copy of the notice letter that was sent to the Veteran notifying her of the scheduled examinations in November 2012. 2. The RO/AMC should reschedule the Veteran for examinations addressing the lumbar spine, cervical spine, pes planus, and migraine headaches disabilities on appeal. Notice of the date and time of the examinations must be sent to the Veteran's last known address and a copy of the notice letter should be included in the claims file or scanned into the Virtual VA records. The Veteran also should be notified of the consequences for failure to report for the examinations. 3. The RO/AMC should schedule the Veteran for a VA examination with an orthopedist pertaining to a claimed lower back and cervical spine conditions. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, including an MRI and/or x-ray of the cervical spine, and all findings should be set forth in detail. The VA examiner should indicate whether the Veteran currently manifests any disability of the cervical spine. Provided this is the case, then please further opine whether this condition is at least as likely as not (50 percent or greater probability) directly related to the Veteran's military service, taking into consideration the documented service treatment history, as well as the Veteran's own assertions regarding this medical history. It is further requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected degenerative disc disease of the lower back, including at L5-S1. In evaluating the Veteran, the examiner should report the complete range of motion findings for the affected joint. The examiner should be asked to indicate whether pain or weakness significantly limits functional ability during flare-ups or when the measured joint is used repeatedly over a period of time. The examiner should also be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability or incoordination. In addition the examiner should address whether there are any present neurological abnormalities associated with the lumbar spine disability. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. The RO/AMC should then schedule the Veteran for a VA podiatric examination pertaining to the severity of bilateral pes planus. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected bilateral pes planus, in accordance with the rating criteria specified at 38 C.F.R. § 4.71a , Diagnostic Code 5276 for evaluating "flatfoot, acquired." Provided the Veteran has other symptoms of the bilateral feet associated with service-connected disability, though not traditionally evaluated as pes planus, then please specify the nature and degree of foot injury affecting the right and left feet -- in terms of moderate, moderately severe, or severe (the highest level, which follows "severe," being with actual loss of use of the foot). 5. Then schedule the Veteran for a VA examination with a neurologist pertaining to claimed migraine headaches. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner is then requested to provide an opinion responsive to the following inquiries: (1) Did the Veteran's headaches clearly and unmistakably pre-exist entrance into active military service? (2) If the Veteran had such a pre-existing disability, did this condition undergo aggravation during military service (defined as a permanent worsening in severity, not due to the natural disease process)? (3) Provided there was no headache condition pre-existing military service, then is it at least as likely as not (50 percent or greater probability) that the Veteran's headaches are etiologically related to her active military service? Please indicate review of the prior April 2005 VA Compensation and Pension examination in this regard. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 6. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 7. Thereafter, the RO/AMC should readjudicate the claims on appeal (including the service connection claim for right ear hearing loss) based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs