Citation Nr: 1334156 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-03 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for a respiratory disability, to include allergic rhinitis, asthma, and/or bronchitis. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1989 to April 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in relevant part, denied the benefits sought on appeal. The claims folder was later transferred to the RO in Portland, Oregon. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2011. A transcript of that hearing is of record. In February 2012 and January 2013, the Board remanded the Veteran's claims on appeal for further evidentiary development. Although the Veteran initially indicated that he was seeking service connection for a lung condition, the medical evidence of record suggests that his pulmonary symptoms may be attributable to a different, underlying respiratory disability; namely, allergic rhinitis. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Thus, the Veteran's lung disability claim on appeal has been expanded to include any potential underlying respiratory disability that may trigger the manifested symptoms which originally prompted his service connection claim. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, yet another remand is required in this case in order to ensure completeness of the underlying record, and that the Veteran is afforded every possible consideration with respect to his service connection claims. Respiratory Disability The Board previously remanded the Veteran's lung disability claim in order to ensure that an adequate VA opinion was obtained. In a March 2013 addendum to her prior March 2012 VA examination report, the same VA examiner clearly noted that the evidence of record did not support a finding that the Veteran suffered from chronic asthma. Rather, the examiner illustrated how the Veteran's sporadic asthma symptoms arose secondary to his pre-existing environmental allergies. The examiner further identified the Veteran's underlying disability as allergic rhinitis, which was also evinced by his most consistently used respiratory medication, a steroid nasal spray used to treat allergic rhinitis. Moreover, the VA examiner opined that the Veteran did not have chronic bronchitis confirmed by his medical history, but rather found that he had suffered from bronchitis on two occasions since 2007, and once during service in November 1989. She further noted that bronchitis was commonly associated with rhinitis. In sum, the VA examiner appeared to attribute all of the Veteran's respiratory symptoms, including sporadic asthma and periodic bronchitis, largely to an underlying allergic rhinitis. She further noted that he had a history of seasonal allergies prior to his entry into active service. On this record, the Board notes that a medical opinion with respect to whether the Veteran's allergic rhinitis, if found to have clearly and unmistakably preexisted his service, was aggravated as a result of his active service is absent from the record. Accordingly, remand is necessary to obtain this required medical comment from the VA examiner. On remand, the Veteran should be provided with legally adequate notice concerning how to substantiate a claim of entitlement to service connection based on aggravation of a pre-existing condition. Back Disability In the prior January 2013 remand, the Board also instructed that an addendum opinion be obtained with respect to etiology of the Veteran's claimed back disability. Additional comment was requested because the VA examiner providing the March 2012 VA spine exam did not adequately consider the Veteran's contentions that he injured his back during service as a result of being struck by a door bolt; but rather, relied exclusively on an absence of evidence of relevant treatment in service for disassociating his current back disability from his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). While an addendum opinion was requested from the VA examiner, it appears that the examiner was provided with erroneous instructions. As a result, the examiner commented on the functional impairment caused by the Veteran's low back disability rather than on the etiology of his claimed back disability. Notably, however, service connection is not in effect, thus comment on functional impairment is, at this stage, not relevant. An adequate opinion regarding the etiology of the Veteran's claimed back disability remains absent. Thus, remand is required to obtain this opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an updated VCAA notice letter informing him of the requirements for substantiating a claim of entitlement to service connection for a respiratory disability based on aggravation of a pre-existing condition by military service. 2. Ask the examiner who conducted the Veteran's March 2012 respiratory examination (and provided the March 2013 addendum report) to provide an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's allergic rhinitis had its clinical onset during his active service or is related to an in-service disease, event, or injury. The examiner should comment on the Veteran's contention in his October 1990 report of medical history that he suffered from sinusitis and the absence of such a contention in prior reports of medical history, including his the report made in conjunction with his September 1989 enlistment examination. If the examiner determines that the Veteran's allergic rhinitis is a manifestation of or the same disability as the hay fever that was noted to on his enlistment examination, the examiner should provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent probability or greater) that preexisting allergic rhinitis underwent an increase in severity during the Veteran's service (i.e., a permanent worsening of the underlying disease as distinguished from a temporary or intermittent flare-up)? (b) If so, was such increase in severity of allergic rhinitis clearly and unmistakably (i.e., highest degree of medical certainty) due to the natural progress of the disease? The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If, this examiner is no longer available then necessary opinions should be obtained from another qualified medical professional. If further examination is recommended, this should be undertaken. 3. Schedule the Veteran for a new VA orthopedic examination of his spine. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies and tests should be conducted. The examiner should thoroughly examine the Veteran's lower back and diagnose all disabilities found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability, to include degenerative disc disease with chronic strain, had its clinical onset during active service or is related to any in-service disease, event, or injury, including as a result of the alleged incident where the Veteran was struck in the back by a door bolt. While an absence of in-service complaints of a back disability may be considered by the examiner, the absence of such cannot serve as the sole basis for concluding that the Veteran did not have such a disability or suffer such injury in service. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In providing these opinions, the examiner should reference all relevant lay and medical evidence of record, including any contention that he has experienced a continuity of symptomatology of back disability since his separation from service. 4. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall, supra. 5. Finally, readjudicate the Veteran's service connection claims on appeal. If either claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran 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). These claims 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. 2013). _________________________________________________ ERIC S. LEBOFF 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. See 38 C.F.R. § 20.1100(b) (2013).