Citation Nr: 1330623 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 07-04 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for asthma, also claimed as fatigue. 2. Entitlement to service connection for a respiratory disorder, claimed as allergic rhinitis, to include as due to an undiagnosed illness. 3. Entitlement to service connection for an acquired psychiatric disorder, to include mood disorder (depressive type), or other disorder manifested by anxiety and insomnia, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to November 2003. He was enlisted in a reserve component for many years, and those periods and types of service are unverified. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board in February 2011 for additional development and has now been returned for further appellate consideration. In February 2013, subsequent to the October 2012 supplemental statement of the case (SSOC), VA virtual records were added to the claims file without a waiver. Normally, absent a waiver from the Veteran, a remand is necessary when evidence is received by the Board that has not been considered by the RO. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, however, the medical evidence dated through December 2012, while pertinent, is duplicative of evidence previously considered by the RO. Thus, a remand is not necessary. See 38 C.F.R. §§ 19.31, 19.37, 20.800, 20.1304(c) (2012). The Board has recharacterized the claims as set forth on the title page of this decision to better reflect the issues on appeal. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issues of entitlement to service connection for allergic rhinitis and to service connection for an acquired psychiatric disorder, or other disorder, manifested by anxiety and insomnia, are addressed in the REMAND portion of the decision below. The claims are remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Southwest Asia during Desert Storm. 2. There is an approximate balance of evidence addressing the question of whether the Veteran has a chronic respiratory disorder, diagnosed as asthma with associated fatigue, related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, a respiratory disorder, diagnosed as asthma with associated fatigue, was incurred in service. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Without a currently diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Asthma with Associated Fatigue Initially, it is noted that the Veteran has contended that his asthma is of service origin or is the result of an undiagnosed illness. As reported in detail below, the claim is being granted on the theory that service connection is warranted on a direct service incurrence basis. Detailed discussion of the theory that the condition is due to undiagnosed illness is not required. The Veteran submitted his claim for the benefit at issue here in September 2005. Obviously, many years have passed since that time. The delay in arriving at a conclusion may be attributed to a number of factors including the claimed disability's initial characterization as an undiagnosed illness, and the lack of clarity in the language employed in the medical opinions that were obtained as the development of the case proceeded. Nevertheless, at this juncture it appears that with the resolution of reasonable doubt in the Veteran's favor, the evidence is sufficient for obtaining a final result. The facts may be briefly stated. The Veteran, who served Southwest Asia during Desert Storm, is shown to have been seen on at least one occasion during service for a respiratory condition (pharyngitis). He was not specifically seen for asthma. Post-service treatment records dated from 2004 through 2012 are replete with treatment for respiratory complaints, to include rhinitis, as early as 2004, about 6 months after the Veteran's service discharge. Subsequently, diagnoses of bronchitis and (most consistently) asthma were assigned. He has fatigue associated with his asthma. VA records in recent years reflect that the Veteran continues to take medications for his respiratory complaints, although from the records, actual treatment for rhinitis does not appear to be ongoing at the current time. Pulmonary function testing (PFT) in June 2006 showed mild obstructive airways disease. When examined by VA in December 2006, the Veteran stated that he had asthma as a child with the last attack being when he was 10-13 years old. He had had episodes of nasal allergies since he turned 40 to 45 years old which was before service. He did not see a physician for his condition until after service, but he used over the counter medications for his symptoms. The Veteran's treatment includes the taking of numerous medications for his symptoms. The Veteran has long maintained that his asthma is of service origin. His wife has submitted a statement in May 2011 in support of his claim in which she noted that when the Veteran returned from service, his physical ailments included respiratory problems. The Veteran is in receipt of SSA benefits due to the primary diagnosis of asthma. Of record is a VA examiner's opinion in July 2011. He reviewed the claims file, examined the Veteran, and then opined that while the Veteran had bronchial asthma in childhood, it had resolved when he was a teenager. It was more likely than not that the next onset of this condition was related to active military service. In a May 2012 addendum, this examiner continued to opine that the Veteran had asthma of service origin. He specifically noted that while there was no asthma reported during service, the pollutants associated with exposure in the Persian Gulf made it as likely as not that the Veteran's asthma was of service origin. Additional examination was obtained by VA in September 2012 in that sufficient rationale was not provided in the opinions summarized above. This examiner reviewed the claims file but did not examine the Veteran. It was opined that the Veteran's bronchial asthma was less likely than not (less than 50 percent probability) incurred in, caused by, or aggravated by service. The examiner supported the medical opinion by indicating that there was no documentation of asthma while the Veteran was on active duty or within the year thereafter. For rationale, the examiner noted that there was no documentation of childhood asthma with resolution as a teenager. (The examiner failed to note that a history of such was reported on more than one occasion in the treatment records.) Moreover, there was no documentation of asthma while on active duty or within a year of leaving active service. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). Here, the question is whether the claimed disability was incurred in service. From the record before the Board at this time, it may not be concluded that the evidence preponderates against the claim. With VA medical opinions both for and against the conclusion that the Veteran has a respiratory disorder linked to his military service, the reasonable doubt that thus arises must be resolved in favor of the Veteran. Accordingly, the evidence presents a basis for awarding service connection for respiratory disability; asthma with associated fatigue. ORDER Entitlement to service connection for asthma, with associated fatigue, is granted. REMAND Unfortunately, and for reasons explained below, in order to comply with the legal duty to assist the Veteran, the Board finds that it must once again remand the claims for service connection for a respiratory disorder other than asthma, claimed as rhinitis, and service connection for an acquired psychiatric disorder, to include a mood disorder, anxiety, and insomnia, for additional development action. The remand development requested below was precipitated by the Board's grant of service connection for asthma as related above. Respiratory Disorder, Claimed as Rhinitis As discussed above, the Board has granted service connection for asthma, with associated fatigue, as directly related to active service. The examiners who conducted the VA examinations discussed in the decision above did not assign a diagnosis of rhinitis at these examinations, although it was noted that the Veteran did have a long-standing history of nasal allergies. Records in the claims file dated through December 2012 reflect that rhinitis continues to be mentioned as a condition requiring treatment. The evidence reflects that the Veteran has a long-standing respiratory disability, which has been variously diagnosed over the years. Further clarification as to whether the Veteran's claimed rhinitis disorder is separate from asthma, for which service connection has been granted, is required. If the Veteran has rhinitis which is a separate disorder from his asthma, the Board must consider whether rhinitis is secondary to or aggravated by asthma. As service connection for asthma was not yet in effect when medical opinion was obtained, the medical opinion does not address the additional questions the Board must consider before it may complete appellate review. Further development of the medical evidence is required. Acquired Psychiatric Disorder, to Include Mood Disorder, Depressive Type, Anxiety, and Insomnia The STRs are negative for report of, treatment for, or diagnosis of a psychiatric condition. Post-service VA treatment records dated as early as March 2004, approximately 4 months after the Veteran's service discharge, reflect that providers noted sleep disturbances. In May 2004, the Veteran was seen for complaints that since his return from service, he had severe insomnia and was unable to sleep for more than 2-3 hours at night. Medication was prescribed to aid his sleep but it made him unable to wake in the morning. When examined by VA in November 2006, the Veteran reported various symptoms, including anxiety during the day, insomnia at night, depression on a daily basis and boredom 4 to 5 times per week. He reported that all of his symptoms were moderate. The VA examiner assigned a diagnosis of anxiety disorder, not otherwise specified, and noted that the Veteran had a Global Assessment of Functioning (GAF) score of 70. However, the examiner did not provide an opinion regarding the likelihood that there was a relationship between the Veteran's disorder and his service. Thus, additional examination was requested by the Board in a February 2011 remand. One VA examiner rendered a diagnosis of mood disorder, depressive type, due to obstructive sleep apnea "or a closely related breathing related disorder." The examiner opined that the condition was related to service. The RO determined that sufficient rationale for the opinion was not provided and an addendum was requested. It is not clear to the Board that the RO considered whether the Veteran's claim for service connection for a psychiatric disorder as due to an undiagnosed illness may include a claim for service connection for sleep apnea, since sleep apnea was diagnosed in 2012. The claim was reviewed by a VA medical officer in September 2012. The examiner concluded that an acquired psychiatric disorder (mood disorder (depressive type), generalized anxiety disorder, or insomnia, was not related to the Veteran's military service, as the Veteran did not manifest the disorder within one year following service. However, the Board is not certain that this statement regarding the Veteran's post-service complaints and VA treatment is accurate. Moreover, as asthma is now a service-connected condition and as the examiner in July 2011 opined that the Veteran's psychiatric disorder could be related to a "breathing-related disorder," additional examination is necessary to determine whether service-connected asthma has caused or aggravated the Veteran's psychiatric condition. The Board further notes that the record reflects that the Veteran apparently receives Social Security Administration (SSA) disability benefits, and has since 2006. A copy of the SSA decision written in Spanish appears in the record; the Veteran's written application for SSA benefits and some documents which appear to be referenced in that decision are also in Spanish. The Board is unable to locate copies of all documents in English. A copy of the SSA decision and each supporting document translated into English should be associated with the claims files during the course of this Remand. Accordingly, the claims of entitlement to service connection for respiratory disorder, claimed as allergic rhinitis, and entitlement to service connection for an acquired psychiatric disorder, to include mood disorder (depressive type), anxiety, and insomnia, or a diagnosed or undiagnosed illness manifested by those symptoms, are remanded for the development requested below. 1. The Veteran should be afforded an opportunity to submit or identify any additional records, clinical or non-clinical, to include employment records, which show that the Veteran manifested a psychiatric disorder or disorder manifested by sleep disturbance during his active service or proximate to his November 2003 service discharge. The Veteran should identify the names, addresses, and approximate dates of treatment by any non-VA health care provider of a disorder on appeal if those records are not currently included in the claims file, including both non-VA treatment since September 2012 or non-VA treatment soon after service. All efforts to obtain records must be documented in the claims file. If any record cannot be obtained, it should be so stated, and Veteran is to be informed of such. 2. A copy of the Veteran's SSA decision, apparently rendered in 2006, and all associated documents, including the Veteran's application, translated into English, must be associated with the claims files or the electronic record (Virtual VA or other electronic record) available for appellate review. 3. Current VA clinical records from December 2012 to the present should be associated with a file available on appellate review. 4. Afford the Veteran a VA psychiatric examination. The Veteran's claims folder should be forwarded to the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. After examination of the Veteran and review of the entire record, including records of 2012 diagnosis and subsequent treatment of obstructive sleep apnea, the examiner should answer the following questions: A. Does the Veteran have a current acquired psychiatric disorder? B. Is it at least as likely as not (a 50 percent, or greater likelihood) that an acquired psychiatric disorder, if present, had its onset in service, or was first manifested in service, or, is otherwise related to the Veteran's active military service or any incident thereof? C. Is it at least as likely as not (a 50 percent, or greater likelihood) that an acquired psychiatric disorder, if present, is caused or aggravated by service-connected asthma? Aggravation is defined for VA purposes, as permanent worsening beyond the natural progress of a disorder. If so, the examiner should identify the clinical signs and manifestations of the psychiatric disorder which establish: (i) the baseline level of severity of his psychiatric disorder before the onset of aggravation (permanent worsening); (ii) the onset of aggravation (permanent worsening) her psychiatric disorder; and (ii) the current level of severity of her psychiatric disorder at (or after) the onset of aggravation (permanent worsening). The examiner should address the July 2011 examiner's opinion that the Veteran's psychiatric condition is secondary to an obstructive sleep disorder or a "closely related breathing disorder" in light of the grant of service connection for asthma. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is not able to provide an opinion, he or she should explain why. 5. Schedule the Veteran for a VA examination to determine the etiology of any chronic rhinitis, or other respiratory condition (other than asthma). The Veteran's claims folder should be forwarded to the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. The record of the Veteran's treatment in service for pharyngitis and his post-service respiratory complaints must be reviewed. The examiner should discuss the VA examiner's July 2011 opinion that the Veteran's psychiatric condition is secondary to an obstructive sleep disorder or a "closely related breathing disorder" in light of the grant of service connection for asthma. The examiner should address the significance of the Veteran's treatment for sleep disturbances in early 2004, proximate to the Veteran's November 2003 discharge from active service. After examination of the Veteran and review of the entire record, the examiner is requested to address the following questions: Does the Veteran have a chronic respiratory disorder or disorders other than asthma? Does the Veteran have a respiratory disorder which is manifested by anxiety and sleep disturbances? If so, provide an opinion, with complete rationale, as to whether it is at least as likely as not (50 percent or higher probability) that any chronic respiratory disorder (other than asthma), to include rhinitis, or a respiratory disorder manifested by anxiety and sleep disturbances, is or was first manifested in service, or, causally related to any incident of service, or, secondary to (caused or aggravated by) service-connected asthma. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is not able to provide an opinion, he or she should explain why. 6. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2013). If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 7. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 8. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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). ____________________________________________ Tresa M. Schlecht, Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs