Citation Nr: 1330130 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-39 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for allergic asthma. 2. Entitlement to service connection for an acquired psychiatric disorder, to include a panic disorder with agoraphobia, an anxiety disorder, and depression. REPRESENTATION Appellant represented by: Oregon Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and S.E. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from January 2, 1974 to January 25, 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Portland, Oregon. In August 2010, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing at the RO in Portland, Oregon. Subsequently, that VLJ was no longer employed by the Board, and the Veteran notified the Board that he desired a new Travel Board hearing before another VLJ. See 38 C.F.R. § 20.707 (2012). In June 2013, the Veteran testified before the undersigned VLJ at a new Travel Board hearing at the Portland RO. Transcripts of both proceedings have been associated with the claims file. In August 2010, September 2011, and November 2012, these matters were remanded by the Board for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. The issue of entitlement to service connection for an acquired psychiatric disorder, to include a panic disorder with agoraphobia, an anxiety disorder, and depression, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran's allergic asthma preexisted service. 2. The Veteran's preexisting allergic asthma increased in severity in service. 3. There is not clear and unmistakable evidence that the Veteran's preexisting allergic asthma was not aggravated by service. CONCLUSION OF LAW Allergic asthma was aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim for service connection for allergic asthma is granted herein, as explained in detail below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003). The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003). The Veteran served on active duty from January 2, 1974 to January 25, 1974. The Veteran claims that he had a preexisting allergic asthmatic condition that was aggravated by service. See Board Hearing Transcript, June 2013 at 11-12; see also 4-5. On his January 1974 enlistment report of medical history, the Veteran checked the box indicating that he had asthma and hay fever. No notation, however, was made by the examining physician. Therefore, the Board finds that the presumption of soundness applies in this case (albeit the Veteran testified at the Board hearing that he concedes that his asthma preexisted service). Less than two weeks after the Veteran began his active service, service treatment records dated January 17, 1974 reflect that the Veteran complained of difficulty breathing and wheezing, particularly when running in PT. It was noted that he had a history of asthma since childhood, that he was regularly taking actifed, tedrol, and allergy shots, and that he underwent infiltration therapy for his asthma only seven months priorto. Physical examination at the allergy clinic revealed pronounced wheezing. Testing apparently revealed that the Veteran is allergic to trees, grass, and weeds. An impression of allergic asthma and rhinoconjunctivitis since age 12 was recorded, and it was noted as existing prior to service and the Veteran was referred for a medical board. Medical evaluation board records dated January 21, 1974 reflect again the Veteran's history since childhood of allergies and asthma, that since entering physical training he had experienced significant wheezing following training and at night, physical evaluation revealed pronounced wheezing throughout the chest, and that laboratory testing revealed a reaction to trees, grasses, and weeds. The Veteran was recommended for an EPTS separation. The final diagnosis was allergic asthma and rhinoconjunctivitis since age 12, noted as existing prior to service and not incurred in the line of duty. The Veteran's DD Form 214 reflects that he was discharged as medically unfit for enlistment (SDN 375). Post-service, Kaiser private treatment records and VA treatment records reflect that the Veteran has been followed for diagnosed asthma. See, e.g., Kaiser Records, October 1998; VA Treatment Records, March 2005, April 2006. A May 2006 VA examination report reflects that the examiner noted the Veteran's history of being hospitalized in service for a severe asthma attack associated with allergies and being discharged thereafter. The Veteran reported a history of childhood allergies and asthma, and that his mother used to administer adrenaline shots, but that he had no symptoms in high school nor just prior to entering service. It was noted that the Veteran can do virtually nothing without wheezing. The Veteran reported that if he walks into a field of weeds, grass, and flowers, he has severe reactions. Examination revealed bilateral inspiratory and expiratory wheezes with deep breathing. Diagnoses including of allergic asthma were recorded. The examiner opined that the Veteran's allergic asthma clearly preexisted service ("began in childhood") and that his service aggravated the condition insofar as he was hospitalized in service. At the same time, however, the examiner went on to opine that "it seems wrong to call this a service-connected condition," and that "his service history has nothing to do with his current allergic problems." The same examiner clarified in his October 2010 addendum VA medical opinion that it is clear that the Veteran's allergic condition existed prior to service and began in his childhood, particularly in light of the Veteran's reported history of adrenaline shots, which the examiner noted would only have been used for treatment of asthma. The examiner went on to explain that typically, with allergies, there is a period of clearing in the teen years, which was the case with the Veteran followed by aggravation of his condition in service, although service did not cause the condition. As shown above, no allergic asthma condition was noted on the Veteran's entry into service. Therefore, the presumption of soundness applies. See 38 U.S.C.A. § 1111 (West 2002). As discussed above, the only medical opinions of record (from the VA examiner) provide that the Veteran's allergic asthma clearly preexisted service. Although the examiner wrote "clearly" rather than "clearly and unmistakably," the Board finds that in this particular case, the commonsense intent of the VA examiner is quite evident, and any remand for further explanation would only cause unreasonable delay in this case in which service connection is being granted herein, and in which the Veteran himself has conceded that his asthmatic condition preexisted service. Therefore, the Board finds that there is clear and unmistakable evidence that the Veteran's allergic asthma preexisted service. See 38 U.S.C.A. § 1111 (West 2002). As outlined above, the Veteran was hospitalized in service due to his allergic asthma, with no prior record of hospitalization. Therefore, the Board notes that there was certainly an increase in severity of the Veteran's condition in service. Finally, the Board finds that there is not clear and unmistakable evidence that the Veteran's allergic asthma was not aggravated by service. See 38 U.S.C.A. §§ 1111, 1153 (2012). Rather, the VA examiner opined in May 2006, as clarified again in October 2010, that the Veteran's service aggravated his allergic asthma, albeit noting that it was not the cause of it. Therefore, in light of the above, the Board concludes that service connection for preexisting allergic asthma that was aggravated by service is warranted. ORDER Entitlement to service connection for allergic asthma is granted. REMAND The Veteran claims that he has an acquired psychiatric disorder, to include depression, anxiety, and/or a panic disorder with agoraphobia, that began in service when he was treated for his service-connected allergic asthma. See, e.g., Board Hearing Transcript, April 2010 at 6-7, 13-14. In the alternative, the Veteran has also asserted that his service-connected asthma attacks cause him to experience panic attacks because he feels he unable to breathe. See Board Hearing Transcript, April 2010 at 8 and 14. As an initial matter, the Board notes that recent VA treatment records dated through September 2011 reflect that the Veteran has been followed for panic disorder with agoraphobia, e.g., March 2009, as well as symptoms of depression and anxiety, e.g., June 2009. The Veteran has identified private treatment by Dr. S., Henry Mayo Hospital, a UCLA facility, Dr. G., Mercy Hospital, and Kaiser Permanente. See Claim, October 2005; Statement, July 2011. With regard to the records from Dr. S. identified by the Veteran, the Board acknowledges that in February 2006, the RO requested a completed Form 21-4142, but the Veteran did not respond. See VCAA Notice, February 2006. In February 2009, the RO requested records from Henry Mayo Hospital, UCLA, Dr. G., and Mercy Hospital. In March 2009, negative responses were received from Henry Mayo Hospital and UCLA. No response was ever received, however, from Dr. G. or Mercy Hospital. Therefore, the Board finds that a remand is necessary so that a second request for private treatment records may be made to Dr. G. and Mercy Hospital. With regard to the Kaiser Permanente records, the Veteran reports that in 1989, he was hospitalized for a motorcycle accident at a Kaiser Permanente facility, at which time he was diagnosed with a panic disorder and agoraphobia. See Statement, July 2011; Board Hearing Transcript, June 2013 at 5 and 8. The RO requested the Veteran's records from Kaiser Permanente, but the only records received are dated since 1998, which include a February 2000 record reflecting diagnosed panic disorder with agoraphobia. The Board adds that the Veteran moved around 2003 or 2004 and changed treatment facilities to the VA medical center. See Statement, July 2011; VA Treatment Record, May 2004. In light of the above, a remand is also necessary to obtain any outstanding private treatment records dated from 1989 to 1997 from Kaiser Permanente. In addition, the Veteran asserts that he never received any notice regarding the efforts made by the RO to obtain the private treatment records identified by him. See Statement, August 2012. Therefore, the Board also finds that the RO should send a notice to the Veteran of the efforts made to obtain which private treatment records that is in compliance with 38 C.F.R. § 3.159(e). At the June 2013 Board hearing, the Veteran testified that he was receiving disability income from the Social Security Administration (SSA) due to his panic disorder with agoraphobia. Therefore, the Board also finds that a remand is necessary so that any relevant records from SSA may be associated with the claims file. Finally, the Veteran asserts that the November 2010 VA examination was inadequate. In that regard, the Board does acknowledge that the VA examiner noted that she was unable to provide an opinion without resorting to mere speculation, and did not provide any rationale for such a conclusion. Also, the examiner did not address the Veteran's contention that his difficulty breathing during asthma attacks causes or aggravates his panic attacks. Therefore, the Board concedes that this opinion is not adequate upon which to base a decision with regard to the Veteran's claim, and that a remand is necessary to provide the Veteran with a new VA examination. Accordingly, the claim is REMANDED for the following action: 1. Request any outstanding private treatment records from Dr. G. and Mercy Hospital; to that end, provide the Veteran with Forms 21-4142. If any records identified are found to be unavailable, this should be specifically noted in the claims file. 2. Request any outstanding treatment records from Kaiser Permanente dated from 1989 to 1997; to that end, provide the Veteran with a Form 21-4142. If these records are found to be unavailable, this should be specifically noted in the claims file. 3. Obtain copies of all of the Veteran's SSA records. 4. Send notice to the Veteran compliant with 38 C.F.R. § 3.159(e) that explains the efforts made by the RO to obtain the Veteran's private treatment records from Dr. S., Henry Mayo Hospital, UCLA, Dr. G., Mercy Hospital, Kaiser Permanente, and his SSA records (to the extent any of these are found to be unavailable). 5. After all of the above development has been completed, schedule the Veteran for a new VA psychiatric examination to determine the current nature and the etiology of any acquired psychiatric disorder, to include panic disorder with agoraphobia, an anxiety disorder, and depression. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder and a separate copy of this remand must be provided to the examiner for review in conjunction with the examination, and the examiner must note their review. The examiner should opine as to whether it is "at least as likely as not" (50-50 probability) that each psychiatric disorder diagnosed on examination is a) related to service, or b) caused or aggravated by the Veteran's service connected allergic asthma. Please note that the Veteran has asserted that his breathing difficulty during asthma attacks causes or aggravates his panic attacks. 6. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs