Citation Nr: 1328942 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-16 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a headache disability, to include migraines, to include as secondary to a service-connected anxiety disorder. 2. Entitlement to service connection for a disability manifested by fatigue, to include as secondary to a service-connected anxiety disorder. 3. Entitlement to service connection for a respiratory disorder, to include as secondary to a service-connected anxiety disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and a witness ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from September 1991 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded in May 2009, October 2009, March 2011, and September 2012 for further development. The Veteran appeared at a Travel Board hearing in August 2009; a transcript is of record. REMAND The Board remanded the claims so that it could obtain a competent medical opinion regarding whether the Veteran's headaches, fatigue, and difficulty breathing are related to his service connected anxiety disorder. The RO obtained an opinion based on the evidence of record (without examination of the Veteran) in January 2013. The physician that rendered the opinion diagnosed obstructive sleep apnea (OSA) and attributed all of the Veteran's symptoms (headaches, fatigue, trouble breathing) to OSA. She then opined that the OSA was less likely than not caused by, related to, or aggravated by his service-connected anxiety disorder. Her rationale was that OSA is due to a developmentally narrow oropharyngeal airway often with superimposed elevation of body mass index (BMI) and/or natural aging. The Board notes that she did not cite any findings in the claims file that the Veteran had a developmentally narrow oropharyngeal airway or elevation of BMI. Consequently, both the diagnosis and the rationale are called into question. Additionally, the Board notes that at the Veteran's August 2009 Board hearing, he and his represented argued that his disabilities were symptoms of what was originally claimed as posttraumatic stress disorder (PTSD). Consequently, the focus of the appeal has been claims of secondary service connection. The Veteran submitted a March 2013 treatment report from Dr. V.M.O. of Pulmonary Associates of Bay County. Dr. V.M.O. listed chronic persistent asthma, left lower lobe bacterial pneumonia, and obstructive sleep apnea, among the Veteran's problems. He noted that the Veteran also sustained substantial industrial exposure to pesticides, concrete, and diesel fuel contributing to asthma. Specifically, the Veteran reported that for years in service, he worked with low observable coatings for F22s and F15s. He also reported working in mosquito control for two years; and he poured concrete (mixing it from dust) in dusty environments for a year. Dr. V.M.O. noted that bronchitis was diagnosed while the Veteran was on active duty. He stated that the Veteran's "current condition is related to his exposure to airborne contaminants while serving his country in Somalia." The Board notes that during service, the Veteran was treated for several respiratory symptoms. In August 1992, he sought treatment for a productive cough and a scratchy throat. Mild pharyngitis was diagnosed. In June 1993, he requested a prescription for an albuterol inhaler. He stated that a year earlier, he had been given medication for reactive airway disease. He reported that he was experiencing shortness of breath with exercise. Once again reactive airway disease was diagnosed and he was prescribed an albuterol inhaler. In April 1994, he complained of sore throat, difficulty swallowing, and a productive cough. An upper respiratory infection was diagnosed. In a September 1995 Dental Questionnaire, the Veteran reported having had sinus problems and a persistent cough. Additionally, the Board notes that in October 1991, the Veteran sought treatment for a cold and a recurrent right occipital headache. Tension headache was diagnosed. The Board finds that the physician that rendered the January 2013 VA opinion attributed the Veteran's headaches, fatigue, and breathing problems to obstructive sleep apnea; and she found that these were not related to an anxiety disorder. Given that the focus of the appeal has thus far been whether the Veteran's disabilities are secondary to a service-connected anxiety disorder, there has been no VA opinion rendered on whether these symptoms are directly related to the respiratory problems that the Veteran incurred during service. Consequently, the Board finds that the claims must be remanded for another examination and opinion. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The Veteran should be scheduled for appropriate VA examination(s) for the purpose of determining the nature, etiology and severity of the Veteran's headaches, fatigue, and breathing difficulties. The claims file must be made available to the examiner(s) for review in connection with the examination(s). Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner(s) should provide an opinion as to whether (i) it is at least as likely as not (50 percent or greater probability) that the Veteran's current headaches had their onset in service or are otherwise the result of a disease or injury in service; it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches were caused (in whole or in part) by his service-connected anxiety disorder; it is at least as likely as not (50 percent or greater probability) that the Veteran's current headaches were aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected anxiety disorder; ii) it is at least as likely as not (50 percent or greater probability) that the Veteran's current fatigue had its onset in service or is otherwise the result of a disease or injury in service; it is at least as likely as not (50 percent or greater probability) that the Veteran's fatigue was caused (in whole or in part) by his service-connected anxiety disorder; it is at least as likely as not (50 percent or greater probability) that the Veteran's current fatigue was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected anxiety disorder; iii) it is at least as likely as not (50 percent or greater probability) that the Veteran's current breathing difficulty had its onset in service or is otherwise the result of a disease or injury in service; it is at least as likely as not (50 percent or greater probability) that the Veteran's breathing difficulty was caused (in whole or in part) by his service-connected anxiety disorder; and it is at least as likely as not (50 percent or greater probability) that the Veteran's current breathing difficulty was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected anxiety disorder. iv) If the examiner(s) find that the Veteran's symptoms are part and parcel of another disability (i.e. obstructive sleep apnea), then the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability (to include obstructive sleep apnea) had its onset in service or is otherwise the result of a disease or injury in service; it is at least as likely as not (50 percent or greater probability) that the disability (to include obstructive sleep apnea) was caused (in whole or in part) by his service-connected anxiety disorder; and it is at least as likely as not (50 percent or greater probability) that the disability (to include obstructive sleep apnea) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected anxiety disorder? For each opinion, the examiner(s) must provide a rationale. If the examiner(s) are unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for these disabilities in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record 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 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). _________________________________________________ James L. March 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).