Citation Nr: 1321958 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-38 838 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for otitis media of the left ear. 3. Entitlement to service connection for allergies (claimed as nose allergy/rhinorrhea). 4. Entitlement to service connection for acid reflux. 5. Entitlement to service connection for bronchitis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from December 1988 to June 1994 and from December 2004 to January 2006. The Veteran also had an unverified additional period of active duty service beginning in 2011 or 2012, as well as service in the United States Army Reserve and National Guard. The Veteran served in Kuwait, Iraq, and Afghanistan. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision. The Board notes that the September 2008 statement of the case (SOC) included the issues of entitlement to service connection for tinnitus, bronchitis, and sleep apnea with CPAP as well. During the course of this appeal, the RO granted service connection for tinnitus and for obstructive sleep apnea with CPAP and asthma in an August 2011 rating decision. This decision was a complete grant of benefits with respect to these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, these issues are not currently on appeal before the Board. With regard to the Veteran's remaining claim for service connection for bronchitis, the August 2011 rating decision noted that the grant for service connection for sleep apnea and asthma (claimed as bronchitis) was a full grant of the benefits sought on appeal for these issues. However, the Board notes that the Veteran specifically claimed service connection for bronchitis and indicated in a February 2012 statement that he still believed the issue of entitlement to service connection for bronchitis to be considered as on appeal. As such, the Board finds that the issue of entitlement to service connection for bronchitis is still on appeal before the Board. The Board notes that the Veteran requested a Board hearing in Washington, D.C. on his December 2008 substantive appeal. Subsequently, the Veteran withdrew this hearing request in a June 2013 statement. As such, the Board may proceed to consider the issues on appeal without a hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. Records The Veteran submitted a letter in February 2012 indicating that he was being deployed to Afghanistan. VA has a duty to assist the Veteran in obtaining records in the custody of federal government agencies. As it appears that outstanding service treatment records could exist from the Veteran's most recent deployment, the Board finds that these issues must be remanded in order to obtain all available service treatment records. Additionally, it appears that the claims file may be missing service treatment records from the Veteran's other periods of service, such as his Reserve and National Guard service treatment records and his separation examination report for the period of service from December 1988 to June 1994. As such, the RO should ensure that all available service treatment and personnel records from all of the Veteran's periods of active duty service and his Reserve and National Guard service have been requested and associated with the claims file. Moreover, the Veteran signed an Authorization and Consent to Release Information form in October 2007 for records at Potomac Hospital from September 2006 through 2007. In November 2007, VA sent a letter requesting these records beginning in September 2006. In April 2008, the Veteran submitted a second release form for records from this facility dating back to January 2005. A new request for these records dating back to January 2005 was not issued. VA has an obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants in obtaining evidence, to include relevant records from VA or private medical care providers. 38 C.F.R. § 3.159 (2012). As such, the RO should request and associate with the claims file all available treatment records from Potomac Hospital pertaining to the Veteran's treatment dating back to January 2005. Examinations With regard to the Veteran's claims for service connection for left otitis media, left ear hearing loss, and bronchitis, the Veteran underwent VA examinations in May 2011 with regard to these claims. The Veteran should be provided new VA examinations with regard to these claims only if new evidence is received that is pertinent to these claims. With regard to the Veteran's claims for entitlement to service connection for allergies (claimed as nose allergy/rhinorrhea) and acid reflux, the Veteran asserted in his November 2007 claim that these disabilities began in 2004. The Veteran specifically asserted in a February 2012 statement that his acid reflux was due to the follow-up conditions of sleep apnea (lack of sleep and heavy doses of caffeine), which would cause extreme pain and discomfort in the esophagus while trying to sleep at night. In light of the Veteran's contentions regarding a possible relationship between his service-connected sleep apnea and acid reflux, the Board finds that the necessity for a VA examination is shown for the proper assessment of the Veteran's claim. 38 U.S.C.A. § 5103A (West 2002). As such, the Veteran should be scheduled for a VA examination to determine whether he has a current diagnosis of acid reflux that was caused or aggravated by his active duty service or his service-connected sleep apnea with CPAP and asthma. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). In light of the Veteran's contention that he began experiencing nose allergies and rhinorrhea during 2004 while stationed in Iraq, and an October 2005 service treatment record noting the Veteran as having rhinorrhea, the Board finds that the Veteran should also be scheduled for a VA examination to determine whether he has a current diagnosis of allergies or rhinorrhea that was caused or aggravated by his active duty service. Colvin, supra. Furthermore, as sleep apnea is a respiratory disorder, the Board also requires further clarification as to whether the claimed allergies and/or rhinorrhea are caused or aggravated by the Veteran's service-connected disability. Notice As the issue of secondary service connection has been raised by the record, the Veteran should be given proper notice of the requirements for establishing such a claim according to 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a secondary service connection claim under 38 C.F.R. § 3.310. 2. Request and obtain all available service treatment records and personnel records from the Veteran's military service, to specifically include his service in the Army Reserve and the National Guard, his most recent period of active duty service beginning in 2011 or 2012, and all other periods of active duty service. 3. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any additional pertinent evidence not currently of record. Attempts should be made to obtain these medical records, as well as the medical records from Potomac Hospital dating back to January 2005 referred to in the April 2008 Authorization and Consent to Release Information form. Associate any records received, including negative responses, with the claims file. 4. Schedule the Veteran for an appropriate VA examination for his claim for service connection for acid reflux. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of symptoms relating to his acid reflux. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should note all appropriate gastrointestinal disabilities found on examination. Then, opinions must be provided as to the following: a. whether it is at least as likely as not that any gastrointestinal disability, to include acid reflux, found on examination or diagnosed in the medical records had its onset in service or was otherwise caused or aggravated by his active service. b. whether it is at least as likely as not that any gastrointestinal disabilities, to include acid reflux, found on examination or diagnosed in the medical records was caused or aggravated by his service-connected sleep apnea with CPAP and asthma. Aggravation is when a disability is permanently worsened beyond the normal disease progression. c. whether it is at least as likely as not that the Veteran has any gastrointestinal signs or symptoms related to an undiagnosed disability or illness. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 5. Schedule the Veteran for an appropriate VA examination for his claim for service connection for nose allergies and rhinorrhea. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of symptoms relating to his claimed nose allergies and rhinorrhea. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should note all appropriate diagnoses for disabilities related to nose allergies and rhinorrhea. Then, opinions must be provided as to the following: a. whether it is at least as likely as not that any disabilities related to nose allergies and rhinorrhea found on examination or diagnosed in the medical records had its onset in service or was otherwise caused or aggravated by his active service. b. whether it is at least as likely as not that any disabilities related to nose allergies and rhinorrhea found on examination or diagnosed in the medical records was caused or aggravated by his service-connected sleep apnea with CPAP and asthma. Aggravation is when a disability is permanently worsened beyond the normal disease progression. c. whether it is at least as likely as not that the Veteran has any nose allergy and rhinorrhea signs or symptoms related to an undiagnosed disability or illness. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 6. Conduct any additional development deemed necessary based on the receipt any new evidence, to include the ordering of new VA examinations if required. 7. Then, readjudicate the claims, to include whether a gastrointestinal disorder or an allergies/rhinorrhea disability are secondary to the service-connected sleep apnea, or are otherwise related to an undiagnosed illness. If the benefits sought remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).