Citation Nr: 1322269 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-10 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to service connection for a bilateral hand disability, to include as due to herbicide exposure. 2. Entitlement to service connection for a respiratory disorder, to include shortness of breath, to also include as due to herbicide exposure. 3. Entitlement to service connection for a blood disorder, to include claudication and deep vein thrombosis, to also include as due to herbicide exposure REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968 to include in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). In March 2007, the Veteran requested a hearing before the Board. He later withdrew this hearing request. 38 C.F.R. § 20.704(e). In June 2009, February 2011, and September 2012, the Board remanded the Veteran's claims. It is noted that, in September 2012, the Board granted the claims for low back and bilateral foot disability; at that time, the Board remanded the claims for bilateral hand disability, skin disorder, sleep apnea, respiratory disorder, blood disorder (claudication and deep vein thrombosis), and pericarditis (claimed as a heart condition). While in remand status, the Appeals Management Center (AMC) in Washington, D.C., granted the claims for skin disorder, sleep apnea, and coronary artery disease. This is considered a full grant of the benefits sought on appeal at to those claims as the Veteran has not disagreed either the evaluations or effective dates assigned. As such, those claims are no longer before the Board. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). As indicated in the Board's September 2012 decision, the issues of entitlement to service connection for systemic lupus erythematosus (lupus) and an acquired psychiatric disorder have been raised by the record, but have not been adjudicated by the RO. As such, the Board does not have jurisdiction over them, and they are REFERRED to the RO for appropriate action. 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 In September 2012, the Board remanded this case for VA examinations with a medical opinion on the claims for service connection for a bilateral hand disability, respiratory disorder, and a blood disorder, to include claudication and deep vein thrombosis. It was noted that the Veteran sought consideration of these claims on a direct basis to include as due to herbicide exposure in service (other than on a presumptive basis). In December 2012, VA examinations of the hands and vascular system were conducted. On hand examination, carpal tunnel syndrome (CTS) was diagnosed along with lupus. The examiner noted the Veteran's history, to include that CTS was first diagnosed in 2000 and that lupus was first diagnosed in 1996. The examiner further noted that there were no medical records documenting treatment for bilateral hand disorder intervening service and 1996 "making it less likely as not that current bilateral hand disorder is related to herbicide exposure during military service." Likewise, on VA vascular examination, the examiner reported that the Veteran had had been diagnosed with deep vein thrombosis (DVT). There were no other diagnoses listed. The examiner opined that this was less likely than not related, incurred in, or caused by the claimed in-service event or injury. The rationale was that "The Veteran's deep vein thrombosis (DVT) is not related to military service. He developed this condition post military. DVT is not an Agent Orange/herbicide presumptive condition." In January 2013, a Disability Benefits Questionnaire (DBQ) on Respiratory Disorders Other than Sleep Apnea was completed (signed in February 2013). The physician indicated that the claims files were reviewed. The physician further indicated that the Veteran did not have now and had never been diagnosed with a respiratory condition. None of the diseases listed in the DBQ were checked as shown. However, the Board's review of the record discloses an October 2005 VA Agent Orange Registry examination, which shows increased dullness at both lung bases and decreased breath sounds at both bases with an impression for mild pulmonary hyperexpansion and no evidence for acute cardiopulmonary process. Having carefully reviewed the reports of examination along with the medical opinions provided, the Board finds that remand is necessary in this case. VA's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). VA is not required to provide a medical examination in all cases; however, "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, ... he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet .App. 46, 51-52 (2007). A medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, 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. 102, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); Green, 1 Vet.App. at 124. When an examination is provided, the examiner must support his or her conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl, 21 Vet.App at 124-25. Thus, "[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a) to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for proper appellate decision"); see also Green, 1 Vet.App. at 124 (holding that remand is appropriate where the Board relied on an inadequate examination report); 38 C.F.R. § 4.2 (2012). Here, the December 2012 VA medical opinions are inadequate. The medical opinions as to the hand and blood disorder are bereft of any explanations as to why the conditions are not related to service to include herbicide exposure in service. Although the examiner found it was noteworthy that there had been no hand treatment intervening service and 1996, the significance of this silent period was not explained. Also, in regards to the DVT, the examiner concluded that this condition was not related to service or herbicide exposure because the condition is not listed as a presumptive disease under the VA regulations governing presumptive disorder based on herbicide exposure. This reasoning is wholly flawed as it is well-established that a regulatory presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. VA regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board certainly does not require a medical opinion on whether a condition diagnosed is listed among the presumptive diseases as this is not a medical inquiry but rather a legal inquiry. The exclusion of a disability from the list of disabilities for which presumptive service may be assigned does not preclude service connection on a direct basis. In the claims for bilateral hands and venous disorder (DVT), the Board seeks a medical opinion and explanation for that opinion based on, as appropriate, any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. Again, clear conclusions with supporting data and/or bases is required. In regards to the claim for service connection for a respiratory disorder, to include shortness of breath, the January 2013 DBQ is not correct in reflecting that the Veteran did not have any prior respiratory disorders as the record clearly reflects a diagnosis for pulmonary hyperexpansion. Furthermore, the examination report does not address the etiology of the Veteran's complaint of shortness of breath and whether it is part of an underlying disease process of the respiratory system rather than part-and-parcel of his coronary artery disease, sleep apnea, or another disease process. Accordingly, remand for an addendum is necessary. Therefore, as explained above, the Board finds that remand is necessary. It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain medical opinions on the claims for hand disability and blood disorder from an appropriate physician(s). The claims files along with a copy of any pertinent evidence located in Virtual VA that is not in the claims file should be made available to and reviewed by the physician(s). A copy of Board's remand decision here should be made available to and reviewed by the physician to ensure that he understands why the opinions previously rendered were inadequate. In this regard, the physician should accept that the Veteran is credible in his report symptoms and treatment unless otherwise indicated by the record or medical findings. The physician(s) should provide an opinion addressing the following questions: (a) Is it as least as likely as not (50 percent probability or greater) that carpal tunnel syndrome, or any other bilateral hand disorder shown other than lupus, was incurred in service or is etiologically related to his herbicide exposure in service? (b) Has the Veteran had any blood disorder to include deep vein thrombosis (of residuals thereof) since he filed his VA claim in May 2005? * If yes, please identify those disorders/diseases; and * If yes, is it as least as likely as not (50 percent probability or greater) that any disorder (i.e. deep vein thrombosis) was incurred in service or is etiologically related to the Veteran's herbicide exposure in service? * If no, then no medical opinion on causation or etiology is required, but the physician should clearly indicate for the record that the Veteran had no blood disorder to include deep vein thrombosis or residuals thereof at any time during the appeal period (May 2005 to present). A complete rationale for all opinions is required. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. The Disability Benefits Questionnaire on Respiratory Disorders Other than Sleep Apnea completed in January 2013 (signed in February 2013) should be returned to the physician for an addendum. The claims files along with a copy of any pertinent evidence located in Virtual VA that is not in the claims files should be made available to and reviewed by the physician. The physician should explain the diagnosis for pulmonary hyperexpansion shown on the October 2005 report of VA Agent Orange Registry examination and indicate whether the Veteran currently has pulmonary hyperexpansion. Further, the physician should identify the etiology of the Veteran's complaint of shortness of breath; whether it is part of an underlying disease process of the respiratory system; and if so, the physician should identify the underlying disease process and opine as to whether this was as likely as not (50 percent or greater probability) incurred in service or etiologically related to herbicide exposure. A complete rationale for all opinions is required. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). If the physician is not available, another appropriate VA physician should be instructed to provide the required information and, if appropriate, opinion with supporting reasons. Another examination of the Veteran should only be performed if determined to be necessary by the person providing the opinion. 3. Then, after ensuring any other necessary development has been completed, the RO should readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case. The Veteran 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). ______________________________________________ H. N. SCHWARTZ 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).