Citation Nr: 1328752 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 06-02 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for asthma, to include as secondary to service-connected paranoid schizophrenia. 2. Entitlement to service connection for heart disease inclusive of swelling of the hands and feet, to include as secondary to service-connected paranoid schizophrenia. 3. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected paranoid schizophrenia. 4. Entitlement to service connection on a direct basis for a right shoulder disorder based on a reopened claim therefor, and, as secondary to service-connected paranoid schizophrenia based on an original claim. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran had active military service in the Air Force from June 1971 to December 1971 and in the Army from November 1973 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction of the Veteran's claims folder is now held by the RO in Chicago, Illinois. By its decision of March 2010, the Board determined that new and material evidence had not been received to reopen previously denied claims for service connection for a head injury and a chest injury, but concluded that new and material evidence had been received to reopen a previously denied claim for service connection for a right shoulder disorder. Remand of that reopened claim, as well as the Veteran's original claims for service connection for asthma, heart disease, and a left shoulder disorder, was also entered at that time in order to undertake needed actions with respect to the Veteran's expansion of his claims for service connection on the basis that each claimed disorder was caused or aggravated by medication utilized for treatment of his service-connected schizophrenia. Following a return of the case to the Board, further remand action was found in June 2012 to be necessary in order to obtain compliance with prior remand directives, and also to obtain specific VA treatment records not then on file and to afford the Veteran VA medical examinations as to each disability at issue. That remand was to the VA's Appeals Management Center (AMC) in Washington, DC, and following the AMC's attempts to complete the actions sought, the case has since been returned to the Board for further review. The issues of the Veteran's entitlement to service connection for a bilateral shoulder disorder, to include as secondary to service-connected schizophrenia, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's heart disorder, diagnosed as cardiomyopathy, and lung disorders, diagnosed as asthma and chronic obstructive pulmonary disease (COPD), underwent an increase in severity beyond normal progression as a direct result of his service-connected schizophrenia and its symptoms. CONCLUSION OF LAW Heart and lung disorders, diagnosed as cardiomyopathy, asthma, and COPD, are proximately due to or the result of service-connected schizophrenia. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the disposition of this matter is wholly favorable to the Veteran in terms of the issues addressed on their merits, the need to discuss the VA's compliance with its duties to notify and assist is obviated. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury and secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, was enacted, which essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. See 71 Fed. Reg. 52744 (2006). The record establishes that service connection for schizophrenia was established by RO rating action in November 2002, effective from November 2000. While the issue developed for review includes theories of entitlement relating to both direct and secondary service connection, it is the Veteran's primary allegation that his lung and heart disorders are the direct result of his schizophrenia and treatment therefor. As the evidence is in relative equipoise as to whether grants of service connection on a secondary basis are warranted, only that theory of entitlement is herein addressed. There is, as noted, evidence both in support of and contraindicating entitlement to the benefits sought, all of which stem from VA medical examinations and opinions obtained in August 2012 and in follow-up thereto. Separate heart, lung, and psychiatric evaluations were conducted at that time, and it was a VA psychiatric examiner who concluded that the Veteran's schizophrenia and its symptoms of anxiety, confusion, paranoia, and depression strained the Veteran's heart and respiratory systems, leading to an aggravation of those disorders. The RO concluded that such opinion was without a rationale and therefore was without any evidentiary value; the Board disagrees and finds that in fact a rationale was furnished and, that inasmuch as it was based on a thorough mental status evaluation and consideration of the entirety of the VA claims folder, the nexus opinion is competent, credible, and highly probative. On the other hand, the VA heart and lung examiner in August 2012 concluded that it was less likely as that the diagnosed entities of cardiomyopathy, asthma, and/or COPD originated in service, were related to service, or were caused or aggravated by the Veteran's use of psychotropic medications, albeit without discussing whether the schizophrenia itself was a causative or aggravating agent. Moreover, the VA examiner conceded that use of certain medications, such as Elavil and various anti-psychotics, were causative of cardiomyopathy and other cardiac pathology, as well as bronchospasm and coughing, noting that the connection was either rare or, alternatively, unlikely due to the Veteran's other risk factors. Why the Veteran's disorder(s) did not fall within the rare exception noted was not indicated by the examiner. Based on the VA's examiner's failure in August 2012 to address all pertinent issues, the AMC referred this case to its medical officer for a further medical opinion. That physician in an undated report, appended to the AMC's opinion request, determined that it was less likely than not that the Veteran's heart and lung disorders were caused or aggravated by his schizophrenia and/or its treatment. A rationale was provided for the opinions offered, albeit without any discussion of the VA psychiatric examiner's findings or opinions. Given that the evidence is qualitatively and quantitatively equal, a grant of service connection for heart and lung disorders, diagnosed as cardiomyopathy, asthma, and COPD, is warranted. To that extent, alone, the appeal is granted. ORDER Service connection for heart and lung disorders, diagnosed as cardiomyopathy, asthma, and COPD, is warranted REMAND The Board by its June 2012 remand specifically directed the AMC to adjudicate initially the Veteran's claims for secondary service connection, to include consideration of 38 C.F.R. § 3.310 as then in effect. This was not accomplished on remand. Rather, the AMC adjudicated the claims under the version of 38 C.F.R. § 3.310 in effect prior to October 2006, and, as indicated previously, substantive changes were made to that regulation in October 2006. As such, remand for corrective action is required. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order); see also 38 C.F.R. § 3.103 (2012). Accordingly, this portion of the case relating to the claims for service connection for shoulder disorders is REMANDED for the following actions: 1. Obtain all pertinent records of VA medical treatment, not already on file, for inclusion in the Veteran's VA claims folder. 2. Lastly, readjudicate the issues on appeal, to include the question of entitlement to secondary service connection for each disorder in question, based on all the evidence of record and all governing legal authority, including 38 C.F.R. § 3.310. If any benefit sought on appeal continues to be denied, then provide the Veteran with a supplemental statement of the case outlining all pertinent evidence and legal authority, in addition to reasons and bases for the adverse action taken, and afford him a reasonable period in which to respond. The case should then be returned to the Board for further review. 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs