Citation Nr: 1329669 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-14 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to separate service connection for a chronic disability manifested by dizziness, claimed as motion sickness, to include as secondary to service-connected traumatic brain injury, post concussion and contusion brain syndrome. 2. Entitlement to service connection for a respiratory disability, to include bronchitis and allergic rhinitis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1958 to September 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In April 2011, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of the hearing is of record. 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 Motion Sickness The Veteran contends that he has motion sickness, manifested by dizziness, which had its onset during active duty. A December 2008 private treatment record from Dr. S. Geluz shows the Veteran reported recurring headaches and dizziness. The diagnosis was postconcussive syndrome. A January 2009 private treatment record indicates the Veteran had a follow-up for dizziness. In a January 2009 letter, Dr. Geluz opined that the Veteran's symptoms of dizziness were manifestations of long-term symptoms of postconcussion syndrome. In a July 2013 rating decision, the RO granted service connection for traumatic brain injury, post concussion and contusion brain syndrome. In light of the opinion provided by Dr. Geluz, the Board finds an addendum opinion is necessary to address the theory of entitlement to separate service connection for a chronic disability manifested by dizziness, claimed as motion sickness, as secondary to the Veteran's now service-connected traumatic brain injury, post concussion and contusion brain syndrome. Respiratory Disability In July 2011, the Board remanded the Veteran's claim for additional development. Specifically, the Board directed that the RO schedule the Veteran for an examination to determine whether it was at least as likely as not that the Veteran had a respiratory disability, to include bronchitis and allergic rhinitis, related to service. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The evidence demonstrates that the Veteran underwent VA examination in December 2011. The VA examiner opined that it was less likely as not that the Veteran had a respiratory disability, to include bronchitis and allergic rhinitis, related to service. The VA examiner opined that the Veteran's present condition, as well as a review of his medical history, failed to meet the diagnostic criteria or the symptomatology of bronchitis, chronic or acute at the present time. The VA examiner stated that allergic rhinitis was likewise not evident on the latest VA examination. Here, the VA examiner commented upon the fact that the Veteran's medical history did not demonstrate a diagnosis of chronic bronchitis. However, the VA examiner did not address the diagnosis of allergic rhinitis as shown in a November 2008 private treatment record from Dr. Geluz. It is well established that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131 (West 2002); see also Degmetich v. Brown, 104 F.3d 1328 (1997). This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (considering the application of McClain on a recent diagnosis predating the filing of a claim). As a result, the Board finds an additional examination is necessary to determine whether any respiratory disability diagnosed during the pendency of the appeal, other than bronchitis, is related to active duty. In addition, the December 2011 VA examiner indicated that treatment records from the Manila VA outpatient clinic were reviewed in connection with the examination. As the evidence does not appear to include these records, on remand the AMC must attempt to obtain and associate all outstanding VA treatment records with the Veteran's hardcopy or electronic claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's hardcopy or electronic claims file any outstanding VA treatment records. All actions to obtain the requested records should be documented in the claims file. If any records cannot be located or no such records exist, the Veteran should be notified, and a memorandum of unavailability should be associated with the claims file. 2. Then, forward the Veteran's claims file to the examiner who provided the December 2011 medical opinion, or an alternate substitute if unavailable, to obtain an addendum opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a separate clinically distinct chronic disability manifested by dizziness, claimed as motion sickness, that is proximately due to the Veteran's service- connected traumatic brain injury, post concussion and contusion brain syndrome. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a separate clinically distinct chronic disability manifested by dizziness, claimed as motion sickness, that is aggravated by his service-connected traumatic brain injury, post concussion and contusion brain syndrome. If aggravation is found, the examiner should address the baseline level of disability before it was aggravated by the service-connected disability. In providing the requested opinions, the examiner is advised that the term at least 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. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the examination report. 3. Thereafter, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any respiratory disability, other than bronchitis, diagnosed at any time during the pendency of the appeal, even if later resolved. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Following a review of the Veteran's claims file, to specifically include the November 2008 private treatment record from Dr. S. Geluz reflecting a diagnosis of allergic rhinitis, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any respiratory disability diagnosed at any time during the pendency of the appeal, even if later resolved, (other than bronchitis), was incurred in, due to, or aggravated by, active military service. In providing the requested opinion, the examiner is advised that the term at least 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. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report. 4. After the development requested has been completed, the RO should re- adjudicate the claim of entitlement to separate service connection for a chronic disability manifested by dizziness, claimed as motion sickness, to include as secondary to service-connected traumatic brain injury, post concussion and contusion brain syndrome, and the claim of entitlement to service connection for a respiratory disability, to include bronchitis and allergic rhinitis. If any benefit sought on appeal remains denied, the Veteran should be furnished a Supplemental Statement of the Case and given the opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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).