Citation Nr: 1328773 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-21 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an upper respiratory disability, to include as secondary to a service-connected anxiety disorder with depression and somatic complaints. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from August 1968 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In February 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination and nexus opinion. The Veteran was afforded an examination in March 2012. In February 2013, the Board remanded the claim again so that the examiner could provide a rationale for the opinion provided. A May 2013 supplemental opinion was provided. The action specified in the February 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, for the reasons explained below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In July 2013, the Veteran's representative submitted an informal hearing presentation, which included links to several studies showing a relationship between anxiety disorders and several physical ailments including respiratory disease. The Board finds that the examiner who provided the opinions in March 2012 and May 2013 should consider the studies that were submitted by the Veteran's representative and provide another supplemental opinion regarding the Veteran's claim. In her original opinion in March 2012 the examiner noted that it was at least as likely as not that the Veteran's rhinitis could be temporarily aggravated by her service-connected psychiatric disorder at times when the Veteran was feeling especially stressed. She also stated that it was not possible to provide a baseline as to the severity of the upper respiratory disorder before being aggravated by her service-connected psychiatric disorder, since the Veteran's history did not provide sufficient information regarding any variations in her nasal symptoms as compared to times when she was unusually anxious to allow such a baseline to be delineated. In her follow-up May 2013 opinion, the examiner more definitively determined that it was not at least as likely as not that any of the Veteran's respiratory conditions were aggravated by her service-connected psychiatric disorders. She noted that the Veteran had a somatization disorder, which caused her to have a higher level of concern about symptoms that might be regarded as irritating but trivial by another person. The Board finds that given the studies that have been submitted in support of the claim are relevant to the examiner's original opinion that the Veteran's allergic rhinitis could have been temporarily aggravated by her psychiatric disorder, these studies should be considered in rendering a supplemental opinion. In addition, the Veteran not only claims that her anxiety disorder aggravated her upper respiratory disability, she also contends that she has had an upper respiratory disorder since service in 1969. (See VA Form 21-4138, June 7, 2007). The service treatment records show that the Veteran had a complaint of syncope in January 1969 but a chest x-ray was negative. The Veteran was treated for a throat infection in service in October 1969. Specifically the laboratory report notes a staphylococcus aureus infection of the throat. The Veteran reported on her discharge Report of Medical History that she had a history of frequent sore throats. After service, the Veteran reported to the emergency room at a private hospital in January 1975 with complaints of difficulty breathing. She also stated that she coughed three to four times a day with phlegm and drops of red blood that had been present for years. Later private treatment records dated from October 1980 to January 1995 show multiple complaints including hysteric anxiety with itching and no lesions, trouble swallowing, bloody nose, bronchial irritation secondary to smoke inhalation, and mild pulmonary stenosis (noted as diagnosed in December 1985). Later VA treatment records dated form 1996 to 2007 show findings of sinusitis, rhinitis, bronchitis, allergies, and questionable asthma. The VA examiner in March 2012 and May 2013 found that the Veteran's allergic rhinitis was the only diagnosis supported by the evidence and that this disorder was not related to military service because it was not caused by military service, but rather was associated with hay fever type environmental allergies. However, the examiner did not comment on the Veteran's medical history of having complaints of frequent sore throats in military service, the Veteran's lay statements concerning having upper respiratory symptoms since service, or the medical history of seeking treatment for multiple upper respiratory complaints since 1975. For these reasons, the Board finds that another supplemental opinion is warranted to resolve this claim. On July 1, 2013, the RO issued a Supplemental Statement of the Case, and extended the Veteran a 30 day period within which to submit evidence before returning the case to the Board. It was noted that if he did not submit the evidence within 30 days, the case would be forwarded to the Board. Later in July, the Veteran said he wanted to submit additional evidence within the 30 day period. More than 30 days later, in mid August 2013, the Veteran submitted additional medical records from the University of Minnessota Medical Center dated in 1997 reflecting that studies were suggestive of reactive airway disease. This evidence should be considered by the AMC on remand. Accordingly, the case is REMANDED for the following action: 1. Return the March 2012 VA examination and May 2013 supplemental opinion along with the Veteran's claims file to the examiner who performed the March 2012 VA examination and provide the May 2013 opinion of Dr. M.O.. If this examiner is no longer available to complete an addendum to her opinion, the Veteran should be scheduled for a new VA examination by a pulmonologist to ascertain the origins or etiology of her upper respiratory disorders. The claims folders are to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims folders. After a review of the claims folders and an examination of the Veteran, the examiner should provide answers to the following questions: (a) What are the diagnoses for all of the Veteran's upper respiratory disorders? (b) Is it at least as likely as not that any of the Veteran's current upper respiratory disorders were caused by any event, injury, or disease, or first manifested in her military service? In addressing this question please address the Veteran's medical history of having a throat infection in service and complaints of frequent sore throats in military service, the Veteran's lay statements concerning having upper respiratory symptoms since service, and the medical history of seeking treatment for multiple upper respiratory complaints since 1975. (c) Is it at least as likely as not that any of the Veteran's upper respiratory disorders were caused by her service connected psychiatric disorder? (d) Is it at least as likely as not that any of the Veteran's upper respiratory disorders were permanently aggravated by her service connected psychiatric disorder? In answering (c) and (d) please consider the studies that were submitted by the Veteran's representative in the July 24, 2013 informal hearing presentation, which are noted as supporting the conclusion that anxiety disorders are independently associated with several disorders including respiratory disease. Note 1: In providing answers to the above questions, if the examiner concludes that any of the Veteran's upper respiratory disorders were aggravated by her service connected psychiatric disorder, including the medication she takes to treat her psychiatric disorder, the examiner should provide a base-line as to the severity of the upper respiratory disorder before being aggravated by her service connected psychiatric disorder, if possible. Note 2: In providing answers to the above questions, 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 causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. Note 3: The Veteran's subjective history of her symptoms should be considered. Note 4: The rationale for all opinions expressed in the examination above should be provided. If the examiner(s) is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence submitted since the last July 2013 supplemental statement of the case, including all the studies referenced by the Veteran's representative in the July 2013 informal hearing presentation and the evidence submitted in August 2013 to include the private medical records from 1997. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is 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. 2013). _________________________________________________ K. PARAKKAL 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) (2013).