Citation Nr: 1334700 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-28 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for asthma, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from October 1992 to February 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The record shows that, in December 2011, the Veteran revoked the appointment of representation with the Berry Laws Firm. In May 2013, the RO notified the Veteran that, if asked, the RO would provide him a listing of recognized veterans' service organizations and/or representatives since he current had no recognized representative. VA received no response to the May 2013 letter. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. The claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board remanded this case in July 2011 for a VA respiratory examination to ascertain the most likely etiology of the Veteran's diagnoses for asthma and sleep apnea. The Veteran reports breathing problems since he was bitten by a venomous viper (snake) in service. Service treatment records corroborate that he was seen for symptoms possibly related to insect or snake bite. A November 2011 VA medical opinion reflects that the claimed conditions are less likely than not related proximately due to or the result of the Veteran's service connected disability. However, the examiner does not address whether service-connected disability has permanently aggravated either asthma or sleep apnea. Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Second, in response to the Veteran's assertion that he has had asthma since a snake bite in service, the examiner states that "it is more likely that it would be due to his (service associated) sinusitis (or that his S&S are R/T reflux)." However, after comparing the Veteran's history and the documented treatment in service, the examiner concluded that asthma is less likely than not associated with service, reasoning that because the Veteran's treating physician had not linked his service-connected sinusitis and asthma that they were unrelated conditions. It is noted that a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, medical opinion does not lay out clearly the conclusions with supporting data and a reasoned medical explanation connecting the two. Third, report of VA examination dated in November 2011 reflects that the Veteran has been followed for asthma by a non-VA medical professional. These records have not been requested or obtained. VA's duty to assist includes obtaining records in Federal custody and making reasonable efforts to obtain those outstanding medical records not in Federal custody. 38 C.F.R. § 3.159. VA should request that the Veteran identify his private medical providers and attempt to obtain those records. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should obtain all pertinent updated VA treatment records and all private treatment records associated with the Veteran's asthma and sleep apnea after obtaining the necessary authorization for release. These records should be associated with the claims files along with all attempts to obtain such records. The Veteran should be notified if VA is unable to obtain any private treatment records for which he has provided an authorization for release to VA and given the opportunity to provide these records himself. 2. The RO or AMC should schedule the Veteran for a VA examination by an appropriately skilled physician to confirm that the Veteran has asthma and sleep apnea based on current examination and/or review of the treatment records. Then, the physician should answer the following: (a) Whether it is at least as likely as not (50 percent probability or more) that asthma or sleep apnea was initially manifested in service or etiologically related to an in service disease or injury, to include the "possible" snake bite or insect bite noted in the service treatment records; the physician should comment on the Veteran's belief that his breathing problems (to include asthma) were caused or precipitated by a snake bite in service. (b) Whether it is at least as likely as not that asthma or sleep apnea is proximately due to service-connected sinusitis. (c) Whether it is at least as likely as not that asthma or sleep apnea is aggravated (permanently worsened) by service-connected sinusitis. The physician should accept the Veteran's statements as truthful unless otherwise indicated by the record. Aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. A complete rationale is required for all opinions. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible, to include whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 3. Then, the RO or AMC should undertake any other development it determines to be warranted. 4. After the development requested above has been completed to the extent possible, the RO should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the claims files are returned to the Board for further appellate action. 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). 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. 2013) ______________________________________________ MICHAEL LANE 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) (2013). Department of Veterans Affairs