Citation Nr: 1332208 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 03-26 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bronchitis. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for tinea pedis, tinea versicolor and tinea cruris. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney-at-Law ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991. He also had additional unverified service in the Arkansas Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. This matter was last before the Board in September 2009 at which time it was remanded for further development. By way of background, the Board notes that in March 2013, the RO issued a Statement of the Case (SOC) that addressed 10 issues not listed on the cover page of this remand. See March 12, 2013, SOC. A review of the Veterans Appeals Contact and Locator System (VACOLS) indicates that a VA Form 9 (Substantive Appeal) was received with respect to this SOC. The Board has attempted to obtain any possibly outstanding Substantive Appeal from the RO, but has not received a response to its request from the RO. Thus, the Board will proceed with consideration of the present claims and, of course, without any prejudice to the claims listed in the March 2013 SOC. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for bronchitis, sinusitis, tinea pedis, tinea versicolor and tinea cruris that he claims were incurred in service. He particularly relates that these conditions had their onset in service - specifically during his period of duty that involved active duty in support of Operation Desert Shield/Desert Storm from November 1990 to May 1991. In furtherance of attempting to substantiate his claim, VA has obtained service treatment records from his period of active service from November 1990 to May 1991. See May 2006 VA request for information. A review of these records discloses only a few service treatment records dated prior thereto and thereafter. Notably, the Veteran apparently had service in the Arkansas National Guard following May 1991. It thus appears to the Board that there may be outstanding relevant records related to the Veteran's National Guard Service, possibly in the possession of the Veteran's former National Guard unit. When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2). Accordingly, VA must attempt to obtain any possibly outstanding service treatment and personnel records. Moreover, the Veteran's periods of ACUDTRA and INACDUTRA have not been verified. Also, when this matter was last before the Board, it was remanded to afford the Veteran VA examinations to address the etiology of the disabilities involved in the present appeal. The remand directed specifically that the examiner address the credible evidence of a continuity of symptoms, i.e. the Veteran's competent lay observations of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In March 2011 the Veteran was afforded a VA examination. The examination report does document the Veteran's assertions that the claimed conditions had their onset in service. However, in rendering negative etiologic opinions, the examiner largely relied upon the absence of documented symptomatology in the service treatment records. He did not elicit much of a history from the Veteran regarding his lay observations. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). As the examiner did not obtain an adequate lay history from the Veteran and consider this competent evidence, the examination report is inadequate and must, therefore, be returned. 38 C.F.R. § 4.2. Along these lines, the Board also notes that the Board's September 2009 remand directed that the Veteran be afforded separate VA examinations to address his claims. The March 2011 examination addressed all of the claimed disabilities. Accordingly, the claim must also be remanded to obtain separate VA examinations. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's periods of active service, active duty for training, and inactive duty for training with respect to his National Guard service in the Arkansas Army National Guard. Request assistance from the State Adjutant General's Office and the Service Department where necessary, including obtaining copies of orders and obtaining pay records from the appropriate state agency and/or the Defense Finance Accounting System. Reports of retirement points do not contain the necessary information in this regard. Perform any and all follow-up as necessary, and document negative results. 2. Obtain any records not currently associated with the claims file, including any personnel and treatment records associated with the Veteran's Arkansas Army National Guard duty and associate them with the claims file. Perform any and all follow-up as necessary, and document negative results 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bronchitis. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that bronchitis is attributable to service, particularly his period of duty that involved active duty in support of Operation Desert Shield/Desert Storm from November 1990 to May 1991. 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 unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed sinusitis. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that sinusitis, or any diagnosed condition of the sinuses, is attributable to service, particularly his period of duty that involved active duty in support of Operation Desert Shield/Desert Storm from November 1990 to May 1991. 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 unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 5. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed tinea pedis, tinea versicolor and tinea cruris. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that tinea pedis, tinea versicolor and tinea cruris is/are attributable to service, particularly his period of duty that involved active duty in support of Operation Desert Shield/Desert Storm from November 1990 to May 1991. 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 unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 6. Ensure that the information provided in the obtained examination reports satisfies the criteria above and, if not, return any such report as insufficient. Then, after any further development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the him and his attorney a Supplemental Statement of the Case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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 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).