Citation Nr: 1325881 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-16 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a lung disorder, to include unilateral diaphragmatic palsy, to include as due to undiagnosed illness or as secondary to a cervical spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from June 2004 to November 2005, to include service in the Southwest Asia theater of operations during the Persian Gulf War. He had additional service in the Army National Guard, including a period of active duty for training (ACDUTRA) from June 1995 to August 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, in which the RO denied service connection for unilateral diaphragmatic palsy (claimed as a lung condition) and degenerative disc changes at C3-C4 with some encroachment of the left intervertebral foramen (claimed as bulging disc). In his July 2012 Informal Hearing Presentation (IHP), the Veteran's representative asserted that, in light of the Veteran's service in Iraq, his claim for service connection for a lung disorder should include consideration of whether he has a lung disorder due to an undiagnosed illness related to his Persian Gulf War service. The Veteran has also presented evidence indicating that his claimed lung disorder is related to his claimed cervical spine disorder. Accordingly, this claim has been characterized as reflected on the title page. The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. 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 As stated in the introduction, the Veteran served in the Army National Guard. While one period of ACDUTRA, from June 1995 to August 1995, has been verified, there has been no verification of additional periods of ACDUTRA and/or inactive duty for training (INACDUTRA). This is particularly significant in light of the fact that, when the Veteran presented to his private physician in December 2007 with breathing complaints, he indicated that he was in the Army National Guard. He again stated that he was still in the National Guard during a March 2011 VA examination. Verification of all periods of ACDUTRA and/or INACDUTRA should be accomplished on remand. Additionally, service treatment records from the Army National Guard were furnished to the RO in July 2009. In a May 2010 letter, Dr. D.J.K. reported that he had seen the Veteran over the weekend "on my regular guard duty for PHAs at the Fargo Armory." This letter suggests that the Veteran may have undergone a periodic health assessment since his service treatment records were provided to the RO. Any additional service treatment records should be obtained on remand. Remand is also required to obtain outstanding VA treatment records, as a March 2011 VA examination report indicates that the examiner reviewed the Veteran's electronic medical record; however, no VA treatment records are currently associated with either the paper claims file or the Virtual VA e-folder. In support of his claim for service connection for a cervical spine disorder, the Veteran has submitted a letter from Dr. D.J.K. who provided an opinion relating the Veteran's current neck pain and cervical spine disk disease to his deployment to Iraq. However, there is no indication that the opinion was based on review of the claims file, which is significant here as the Veteran reported during a December 2007 pulmonary consultation that he noticed neck pain with boxing, punching, and heavy exertion on Thanksgiving. The Veteran was afforded a VA examination to evaluate his claimed cervical spine and lung disorders in March 2011. However, the examiner rendered speculative opinions regarding the relationship between the Veteran's claimed cervical spine disorder and lung disorder and service and regarding the relationship between the Veteran's lung disorder and cervical spine disorder. Additionally, as indicated in the introduction, the Veteran's representative has asserted that the claimed lung disorder may be related to undiagnosed illness related to his Persian Gulf War service. The March 2011 VA examination report did not address this aspect of the claim. On remand, the AMC/RO should obtain a supplemental medical opinion, supported by a clearly-stated rationale, to adequately address the claims on appeal. In light of the assertions that the Veteran's claimed lung disorder may be due to an undiagnosed illness related to his Persian Gulf War service or related to his claimed cervical spine disorder, additional notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) regarding these aspects of his claim should be provided. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to attempt to verify all of the Veteran's periods of ACDUTRA and INACDUTRA with the Army National Guard. 2. Request from the National Personnel Records Center (NPRC), the Veteran's National Guard Unit, or any other appropriate entity, any additional service treatment records. 3. Provide the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim for service connection for a lung disorder, to include unilateral diaphragmatic palsy, to include as due to undiagnosed illness pursuant to 38 U.S.C.A. § 1117 or as secondary to a cervical spine disorder. See 38 C.F.R. § 3.310. 4. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed lung and/or cervical spine disorders. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for VA treatment records, including any electronic medical records, as referenced in a March 2011 VA examination report. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 5. After all available records have been associated with the claims file or Virtual VA e-folder, forward the claims file to the nurse practitioner that conducted the March 2011 VA examination, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder had its clinical onset during active service or is related to any in-service disease, event, or injury during active service (to include a period of ACDUTRA), or is related to an injury incurred during a period of INACDUTRA. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, her attention is drawn to the following: * In October 2005 and November 2005 Post-Deployment Health Assessments, the Veteran reported that he did not have, nor had he developed during his deployment, swollen, stiff, or painful joints; back pain; or muscle aches. * In a November 2005 Report of Medical Assessment, the nurse practitioner commented that the Veteran had no medical issues. * In November 2007, the Veteran presented to his private physician with complaints of neck pain down the left side of his neck and into his shoulders for three nights. The assessment was neck pain. * A December 2007 MRI of the cervical spine revealed some bulging of the intervertebral disk and underlying bone spurs at C3-4 and minimal bulging of the intervertebral disk at C4-5. The impression was at least moderate degenerative change of the intervertebral disk space at C3-4 with some encroachment on the left intervertebral foramen, although the neuroradiologist opined that the foramen was of adequate size for the C4 nerve root to exit. * During a December 2007 pulmonary consultation, the Veteran mentioned that he noticed neck pain with boxing, punching, and heavy exertion on Thanksgiving. * Following treatment in May 2009, the Veteran's physician noted that MRI of the cervical spine had shown moderate degenerative disease of the intravertebral disc space at C3-4 with encroachment of the left intravertebral foramen, and commented that probably wearing a 40 to 50 pound jacket (as he reported wearing in Iraq) could have caused the injury at the intravertebral disc and some bulging. * In a May 2010 letter, Dr. D.J.K. wrote that the Veteran was apparently deployed to Iraq from June 2004 to November 2005, during which time he was involved in convoy duties. Dr. D.J.K. reported that, in November 2007, the Veteran was noted to have some shortness of breath and was subsequently found to have a paralyzed diaphragm due to a neck problem. Dr. D.J.K. opined that, although the Veteran had no documented injury, it was certainly feasible that his neck injury was related to his deployment to Iraq, adding that there was really no other explanation, as he had had no other injury since deployment. He concluded by opining that it was at least as likely as not that the Veteran's neck injury did result from his deployment in Iraq. * The Veteran reported on VA examination in March 2011 that he first noted neck pain on Thanksgiving 2006. He denied specific trauma, but reported that he was playing Nintendo Wii boxing and noticed that his neck was very sore the next day. The examiner commented that, according to private medical records, this was, apparently, Thanksgiving 2007. * The pertinent diagnosis following VA examination in March 2011 was degenerative disc disease of the cervical spine per MRI. The examiner opined that degenerative disc disease (DDD) can be caused by aging and "general wear and tear." She added that smoking increases the risk of DDD. The examiner opined that, based on the fact that there were no complaints of neck pain in service and the Veteran's symptoms started two years after his deployment, the question of whether or not wearing a bulletproof vest and participating in convoy duties in service caused the cervical spine condition could not be resolved without resorting to mere speculation. In rendering her opinion, the examiner should particularly consider and address the May 2009 and May 2010 medical opinions regarding the relationship between the Veteran's claimed cervical spine disorder and service in Iraq. The examiner is advised that the Veteran is competent to report wearing a 40 to 50 pound jacket in Iraq, and the Board accepts this as credible and consistent with the circumstances of his service. The examiner should also consider the Veteran's history of smoking. In this regard, a December 2007 private treatment record reflects that he smoked approximately a pack of cigarettes per day for 15 years, and quit around September or October 2007, although he continued to be exposed to secondhand smoke. Regarding the claim for service connection for a lung disorder, the examiner should specifically state whether the Veteran's respiratory complaints (including shortness of breath) are attributable to a known diagnostic entity, to include unilateral diaphragmatic palsy. If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the lung disorder had its clinical onset during active service or is related to any in-service disease, event, or injury during active service (to include a period of ACDUTRA), or is related to an injury incurred during a period of INACDUTRA; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by his claimed cervical spine disorder. If there are symptoms related to the Veteran's claimed lung disorder, including shortness of breath, that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, her attention is drawn to the following: * In October and November 2005 Post-Deployment Health Assessments, the Veteran reported that he did not have, nor had he developed during his deployment, difficulty breathing. * In a November 2005 Report of Medical Assessment, the nurse practitioner commented that the Veteran had no medical issues. * Private treatment records dated from November 2007 to May 2008 include complaints regarding shortness of breath. * A December 2007 chest X-ray revealed paralysis of the left hemidiaphragm. CT scan of the chest from the same date revealed signs of reactive airway disease, asymmetric elevation of the left hemidiaphragm, and patchy left lower lobe atelectasis/fibrosis. * A December 2007 pulmonary consultation notes that the Veteran complained of shortness of breath with exertion. The Veteran reported that he was in Iraq for almost a year and a half, where he wore bullet-proof jackets along with lead-proof coverage that weighed about 50 pounds. The physician noted that the chest X-ray and CT scan of the chest showed a paralyzed left hemidiaphragm, recent peribronchial cuffing, and mid-thoracic multi-level disk disease. The impression was left hemidiaphragm weakness with left upper extremity tingling along with neck pain with multi-level disk disease and thoracic disks; suggests the possibility of cervical disk disease or phrenic nerve compression at the C3, C4, or C5 level that could potentially explain the left diaphragmatic weakness. * A December 2007 pulmonary function test (PFT) revealed a mild restrictive lung defect when upright with a significant drop in lung function when supine, consistent with diaphragmatic weakness. The physician commented that the diaphragmatic weakness might be causing the Veteran's restrictive lung function and shortness of breath. * The Veteran was referred to the neurology clinic where he was evaluated for intermittent right thoracic pain in January 2008. He reported being in a normal state of health until November 2007 when he developed pain in the right thoracic area and dyspnea on exertion. The neurologist noted that the Veteran had been afforded a pulmonary consultation, which revealed left diaphragmatic weakness. The best explanation of his symptoms of shortness of breath and right-sided thoracic pain with exercise was stated to be increased work of the right hemidiaphragm with exercise secondary to the left paretic diaphragm. Pulmonary testing was consistent with this concept. The neurologist's impression was spontaneous onset of right thoracic pain thought to be due to compensation of left diaphragmatic weakness. C4 radicular process was identified as a differential diagnosis. * In January 2008, the Veteran underwent an electromyography study to evaluate left diaphragmatic weakness. The impression was that the study was normal, with no electrodiagnostic evidence of neuropathy, motor neuron disease, cervical radiculopathy, or brachial plexopathy to explain the Veteran's symptoms. * In a January 2008 letter, the neurologist who evaluated the Veteran referred to a case report regarding cases of unilateral diaphragmatic paralysis associated with phrenic nerve injury in the setting of known trauma. He commented that, although the Veteran did not have a history of an overt neck injury, his cervical spine imaging and diaphragmatic paralysis might correlate to these cases. * The Veteran returned to the pulmonary clinic in May 2009, at which time the impression was unilateral diaphragmatic palsy. * The pertinent diagnosis following VA examination in March 2011 was left diaphragmatic palsy. The examiner noted that causes of unilateral diaphragmatic palsy include phrenic nerve injury due to stretching or cooling during cardiac surgery. Herpes zoster, cervical spondylosis, poliomyelitis, compressive tumors, pneumonia, and iatrogenic embolization were also listed as infrequent causes of unilateral paralysis. She added that many cases were idiopathic. Based on this, the examiner opined that whether or not the Veteran's diaphragmatic palsy is related to his DDD of the cervical spine cannot be resolved without resorting to mere speculation. The examiner further opined that, based on the fact that there were no complaints of respiratory problems in service and the Veteran's symptoms started two years after his deployment, the question of whether or not wearing a bulletproof vest and participating in convoy duties in service caused the pulmonary condition could not be resolved without resorting to mere speculation. In rendering her opinion, the examiner should particularly consider and address the December 2007 pulmonary consultation and the January 2008 letter suggesting a relationship between the Veteran's claimed lung disorder and cervical spine disorder, as discussed above. The examiner should also consider the Veteran's history of smoking, as discussed above. The examiner is advised that the Veteran is competent to report symptoms such as shortness of breath. The complete rationale for ALL opinions expressed, should be set forth in the examination report. If the examiner is unable to provide any requested opinion(s) without resorting to speculation, she must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge, or the actual cause of the claimed disorder(s) cannot be selected from multiple potential causes, this should be fully explained. If further examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinions. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 7. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ P. M. DILORENZO 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).