Citation Nr: 1321815	
Decision Date: 07/09/13    Archive Date: 07/18/13

DOCKET NO.  08-12 931	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to service connection for asthma.

2. Entitlement to service connection for a respiratory disorder, other than asthma, to include as due to an undiagnosed illness.

3. Entitlement to service connection for Graves' disease.

4. Entitlement to service connection for a heart condition to include hypertension and palpitations, claimed as secondary to Graves' disease, and to include as due to an undiagnosed illness.


ATTORNEY FOR THE BOARD

H. Yoo, Counsel



INTRODUCTION

The Veteran served on active duty from June 1987 to May 1991 with service in Southwest Asia from January 12, 1991 to April 11, 1991.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Phoenix, Arizona, which denied the benefits sought on appeal.  These issues have subsequently been transferred to the Los Angeles, California, RO.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Board notes that the issues of entitlement to service connection for asthma and Graves' disease were initially denied by the RO in June 2005.  However, the Veteran submitted additional relevant evidence within one year of the June 2005 rating decision.  See 38 C.F.R. § 3.156(b) (2011) (directing that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period).  A January 2006 letter requested service connection for asthma and Graves' disease, among others, and provided additional relevant evidence.  The April 2006 decision adjudicated those claims and the Veteran appealed.  Accordingly, the claims for service connection for asthma and Graves' disease will be considered on the merits.  Id.

The Board notes that initially, the Veteran requested a claim characterized as an entitlement to service connection for asthma (claimed as breathing allergy problems).  However, the post-service record indicates the Veteran has also complained of shortness of breath, not attributable to asthma.  In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claim is not limited to the diagnosis identified by the Veteran.  More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim.  See id.  

Because the evidence developed during the processing of this claim indicates that the symptoms for which the Veteran is seeking VA benefits may be caused by a respiratory disorder other than asthma, the issue of entitlement to service connection for a respiratory condition, other than asthma is part of the Veteran's appeal.  See Clemons v. Shinseki, 23 Vet. App. 1  (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009).

The Board further notes that according to the April 2006 rating decision, in addition to the issues above, the Veteran was also denied entitlement to service for chronic fatigue syndrome, chronic skin rash, irritable bowel syndrome, joint and muscle pain, and asleep disorder.  The Veteran submitted a timely substantive appeal for these issues in April 2008.  The issues of entitlement to service connection for irritable bowel syndrome and chronic skin rash was subsequently granted in a Decision Review Officer decision in December 2012.  The issues of entitlement to service connection for chronic fatigue syndrome, joint and muscle pain, and a sleep disorder was granted in a May 2013 rating decision.  Therefore, these issues are not before the Board.

Moreover, the contention advanced by the Veteran present the claims of entitlement to service connection for a respiratory disorder, other than asthma; Graves' disease; and a heart condition to include hypertension and palpitations, as including the theory that these disorders may be the result of his Gulf War service.  Accordingly, the Board has further recharacterized this issue to reflect consideration of the claim under all theories of entitlement to service connection.

For the reasons explained below, the issue of entitlement to service connection for a respiratory disorder, other than asthma; Graves' disease; and a heart condition to include hypertension and palpitations, claimed as secondary to Graves' disease, and to include as due to an undiagnosed illness, are REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part.



FINDING OF FACT

Asthma was not present in service or manifested to a compensable degree within one year after discharge from service, and asthma is not otherwise shown to be associated with service.


CONCLUSION OF LAW

The criteria for service connection for asthma have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

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 (West 2002); 38 C.F.R. §§ 3.102, 3.56(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide.

The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In January 2005 and February 2006 the agency of original jurisdiction (AOJ) provided the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  A March 2006 letter provided the Veteran with the notice pursuant to Dingess.

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

Next, VA has a duty to assist the Veteran in the development of the claims.  This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The VA has obtained copies of the Veteran's service treatment and personnel records, and has reviewed the evidence in the Virtual VA system.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to this claim.

The Board recognizes that the Veteran has not been afforded a VA examination in this case.  However, no examination is necessary to decide this claim. 
In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. 

These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. 

In this case, no examination is necessary in order to adjudicate the claims because there is no evidence to satisfy the McLendon criteria discussed above.  While the record does reflect a diagnosis of asthma, there is no credible evidence of an in-service disease or injury or evidence suggesting that these conditions may somehow be related to military service.  Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination.  The Veteran was not prejudiced by the lack of VA examination.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected.

II. Merits of the Claim

Governing Laws and Regulations

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).

Generally, the evidence must 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.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). 

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

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.  If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). 

Here, the Board notes that the Veteran's claimed disability of asthma is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). 

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis

The Veteran contends that he is entitled to service connection for asthma as a result of his military service. 

The Veteran's service treatment records fail to demonstrate that asthma or any other respiratory disorder was manifested during active military service.  In the April 1991 Report of Medical History prior to separation, the Veteran denied shortness of breath and asthma.  The Veteran treatment records are also absent of any complaint, treatment, or diagnosis of asthma.

From a review of the post-service treatment records, the Board acknowledges the Veteran has a diagnosis of asthma.  In a September 1997 radiology report, x-rays of the chest  revealed that the "lungs were clear bilaterally" and no active diseases were noted.  However, in an undated pulmonary functions studies, it was noted that the Veteran was 28 years old (placing the date of this exam as approximately 1997) and was suspected to have asthma.   The pulmonary function test was normal but the examiner noted "[t]his does not exclude asthma since patient does not [have] bronchospasm at this moment."  A 1997 Persian Gulf Registry Code Sheet by the VA indicates the Veteran was diagnosed with asthma.

In a January 1998 VA treatment record, the Veteran denied a family history of asthma.  The VA physician noted that the pulmonary function test conducted in 1997 was normal but "does not exclude [a]sthma."  However, the VA physician concluded that there was "[n]o evidence of asthma or obstruction on physical, [pulmonary function tests], or [chest x-ray]."

A January 2008 letter from Dr. L. M. M, indicated the Veteran complained of shortness of breath, however, a diagnosis of asthma was not given.

Based on the evidence of record, the Board determines that the evidence weighs against the Veteran's claim for service connection for asthma.  Here, the evidence of record shows that the Veteran did not exhibit an onset of asthma during active duty. The service treatment records contained no complaint, finding or diagnosis of asthma during active duty.  Therefore, the record evidence fails to establish that asthma was noted, or had its onset, during the Veteran's period of active duty service.

There is also no evidence that the Veteran's asthma manifested to a compensable degree within one year after discharge from service.  In fact, the evidence as discussed above demonstrates that the Veteran was earliest possible diagnosis for asthma was in 1997; approximately six years after his discharge from the military. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition].

There is also no medical opinion establishing the Veteran's asthma is etiologically related to his military service.  The only evidence of record in support of the Veteran's claim consists of his own lay statements.  However, he is not competent as a lay person to provide an opinion concerning medical causation.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  While the Board is sympathetic to the Veteran's claim, and he is certainly competent to describe that which he experienced, any contentions by the Veteran that his asthma related to active service are of minimal probative value.

In consideration of all the above, the Board finds that while the Veteran does have a current diagnosis of asthma, there is no indication that the Veteran was diagnosed with any respiratory disorder in service or immediately thereafter, and no competent and probative medical evidence linking the Veteran's alleged asthma with his active duty service.  As such, the preponderance of the evidence is against this claim and service connection for asthma must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for asthma is denied.


REMAND

A remand is required with respect to the remaining issues on appeal.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).

Entitlement to service connection for a respiratory disorder, other than asthma

Regarding the issue of entitlement to service connection for a respiratory disorder, other than asthma, as discussed above, the evidence developed during the processing of this claim indicates that the symptoms for which the Veteran is seeking VA benefits may be caused by a respiratory disorder, other than asthma.  According to Dr. L. M. M.'s January 2008 letter, the Veteran has shortness of breath which started two months after returning from the Persian Gulf.  However, while Dr. L. M. M. did not attribute this symptom to asthma, it was related to his exposure to the Persian Gulf War.  As such, the issue of entitlement to service connection for a respiratory disorder, other than asthma, is part of the Veteran's appeal.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009). 

However, as the RO has never adjudicated whether service connection is warranted for this issue, the Board finds that the Veteran would be prejudiced if the Board were to address his claim without initial consideration of this theory of entitlement to service connection by the Agency of Original Jurisdiction (AOJ).  Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the AOJ, the Board must consider whether the Veteran has been prejudiced thereby).  As such, a remand of the Veteran's appeal is required to accord the AOJ an opportunity to consider whether service connection is warranted for the claimed respiratory disorder, other than asthma.

VA examinations

The Veteran's military personnel records confirm he served in Southwest Asia from January 12, 1991 to April 11, 1991.  Therefore, the Veteran is a Persian Gulf War veteran and may be entitled to service connection for an undiagnosed illnesses manifested by his symptoms if certain conditions are met.  See 38 C.F.R. § 3.317.  One requirement is that a qualifying chronic disability manifest to a degree of 10 percent or more.  See id.  

The Veteran claims that his service in the Persian Gulf War has led to his numerous conditions.  The Veteran has made several statements that his symptoms started during soon after his return from the Gulf War or shortly after separation from service.  He was also advised by medical professionals that his conditions may stem from his military service.  The Veteran has not been provided a VA examination to determine the extent and history of his conditions, and it is unclear from the evidence of record if the Veteran's complaints could warrant a compensable evaluation.  

The Veteran also contends, in substance, that his heart condition is secondary to or has been aggravated by Graves' disease.  As it is possible the Veteran's claimed heart condition is secondary to the Veteran's Graves' disease, the Board, therefore, finds that the claim for service connection for a heart condition, to include hypertension and palpitations, is inextricably intertwined with the claim for Graves' disease at issue and must be remanded.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  

Furthermore, there is no etiological opinion regarding whether the Veteran's claimed heart condition to include hypertension and palpitations, is related to his Graves' disease.  Thus, the issues must be remanded so that the Veteran may be afforded VA examinations and medical opinions can be obtained.

Given the above, the Board finds that VA's duty to provide VA examinations and obtain medical opinions regarding the claims for entitlement to service connection for a respiratory disorder, other than asthma, Graves' disease, and a heart condition to include hypertension and palpitations, claimed as secondary to Graves' disease, and to include as due to an undiagnosed illness, has been triggered.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the VCAA, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim).  

Additional records

Finally, the Board recognizes that records are possibly absent from the claims file.  The RO must secure any outstanding records and associated them with the claims files.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).  The most recent VA medical record within the claims file is the October 2011 VA examination.  As such, all VA treatment records since 2011 should be obtained and associated with the claims file. 


Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment since 2011.

In addition, obtain all private treatment records, which have not been obtained already.  The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions.

If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record. 

Notice must be provided to the Veteran.  The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence.  The AMC should also inform the Veteran that he can also provide alternative forms of evidence.

2. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the claimed respiratory disorder, other than asthma, to include as due to undiagnosed illness. 

The VA examiner is requested to address the following questions, providing a rationale for each opinion offered:

Is it at least as likely as not (50 percent or greater probability) that any respiratory disorder, other than asthma, now present originated during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints of shortness of breath are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War?

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 service incurrence as to find against such matter.  More likely and as likely support the contended relationship; less likely weighs against the claim.

The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  The Veteran's complaints and lay history should be recorded in full.

A rationale for any opinion expressed must be provided.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

3. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed Graves' disease, to include as due to his Gulf War service. 

The VA examiner is requested to address the following questions, providing a rationale for each opinion offered:

Is it at least as likely as not (50 percent or greater probability) that Graves' disease originated in or during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War?

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 service incurrence as to find against such matter.  More likely and as likely support the contended relationship; less likely weighs against the claim.

A rationale for any opinion expressed must be provided.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  The Veteran's complaints and lay history should be recorded in full and addressed.

4. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed heart condition to include hypertension and palpitations. 

The VA examiner is requested to address the following questions, providing a rationale for each opinion offered:

Is it at least as likely as not (50 percent or greater probability) the Veteran's claimed heart condition to include hypertension and palpitations originated in or during service or is otherwise attributable to military service or any event thereof; secondary to, or aggravated by, any service connected disability, namely Graves' disease or alternatively; is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War?

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 service incurrence as to find against such matter.  More likely and as likely support the contended relationship; less likely weighs against the claim.

A rationale for any opinion expressed must be provided.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  The Veteran's complaints and lay history should be recorded in full and addressed.

5. Thereafter, review the claims file to ensure that the foregoing requested development has been completed.  In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

6. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim.  If action remains adverse to the Veteran, provide the Veteran with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

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).



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs