Citation Nr: 1336585 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-08 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service-connected bronchitis, sinobronchial condition with asthma. 2. Entitlement to service connection for an acquired psychiatric disability, to include depression, to include as secondary to the service-connected bronchitis, sinobronchial condition with asthma. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to August 1977, and November 1981 to September 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the case in July 2011 and November 2012 for further development by the originating agency. The case has been returned to the Board for further appellate action. The issue of entitlement to an increased rating for bronchitis, sinobronchial condition with asthma, 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. FINDING OF FACT The Veteran's adjustment disorder with depression is etiologically related to his service-connected respiratory disability. CONCLUSION OF LAW An adjustment disorder with depression was caused by the Veteran's service-connected respiratory disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2013). Here, as the Board's decision to grant service connection for an adjustment disorder constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the VCAA and the implementing regulations. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Analysis The Veteran contends that his currently diagnosed psychiatric disability is related to service or his service-connected respiratory disability. However, as service connection is being awarded based on a secondary basis, the question of service connection on a direct basis will not be addressed. A review of the record shows that the Veteran has been diagnosed as having a chronic adjustment disorder with depressed mood. See September 2011 VA examination report. He is also service connected for bronchitis, sinobronchial condition with asthma. Accordingly elements (1) and (2) of Wallin are satisfied. Turning to the remaining element of Wallin, a medical nexus, a VA examiner determined that the Veteran's adjustment disorder with depressed mood was secondary to his reported respiratory difficulties, which limited his ability to have enough stamina to work more hours. The examiner opined that the Veteran's current mild adjustment disorder with depressed mood was secondary to the Veteran's reported respiratory difficulties and their associated limitations. Reference was made to the Veteran's report that he had to greatly reduce the number of hours that he worked in his current job doing custodial work because he did not have the stamina to work more hours. Specifically, he reported that since December 2010, he had worked at a fine arts center, arranging events and doing custodial work. The Veteran indicated that he started working an average of 35 to 40 hours per week, but that the week prior to the examination, he reduced his hours to 10 hours per week because he said the he did not have the stamina to work more due to his respiratory difficulties. However, as noted in the Board's November 2012 remand, there was no medical opinion of record at the time of the September 2011 VA examination which addressed whether the Veteran's lack of stamina was a manifestation of his service-connected respiratory disorder or if not, whether it was a symptom of a nonservice-connected disorder that was caused or aggravated by his service-connected respiratory disorder. Accordingly, the claim was remanded for another examination and medical opinion on the relationship, if any, between the Veteran's service-connected respiratory disability and his diagnosed adjustment disorder with depressed mood. In accordance with the Board's November 2012 remand, the Veteran was afforded a VA respiratory disability examination in February 2013. The examiner diagnosed the Veteran with asthma. The examiner opined that it is at least as likely as not that the Veteran's reported lack of stamina is secondary to his asthma. His rationale was that the Veteran's reported history and a review of his medical records show that he has frequent symptoms due to asthma, including nocturnal symptoms approximately twice a week, use of a nebulizer approximately six times per week, use of several medications/inhalers, and reported urgent care or emergency room visits for asthma typically three times per year. Finally, the examiner noted that no other medical conditions limiting the Veteran's stamina had been identified. There is no contrary medical opinion of record. Coupled together, the September 2011 and February 2013 VA examiners' opinions weigh the evidence in favor of a finding that the Veteran's currently diagnosed adjustment disorder with depressed mood was caused by his service-connected respiratory disability (asthma), and associated lack of stamina. There are no competent opinions to the contrary. Thus, in resolving reasonable doubt in the Veteran's favor, the claim for service connection an adjustment disorder with depression is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for an adjustment disorder with depression is granted. REMAND Further development on the matter of entitlement to a rating in excess of 30 percent for service-connected bronchitis, sinobronchial condition with asthma is warranted. Notably, in the report of a February 2013 respiratory examination, the examiner indicated that could not find any records in the claims pertaining to the treatment of the Veteran through Ellsworth Air Force Base (AFB) or any private treatment records. The Board's review of the claims file corroborates this finding. However, by searching VistaWeb and the DOD Remote Data in CPRS, the examiner said that he found that the Veteran had had two prednisone prescriptions from Ellsworth AFB in 2012, and that a progress note from Ellsworth AFB indicated that the Veteran had at least one emergency room visit for his asthma in the past year. The examiner also remarked that the Veteran reported that he received his routine health care through Ellsworth. The complete file is needed in order for the Board to see the nature and severity of the Veteran's respiratory disorder. Because the treatment records from Ellsworth AFB are within Federal control, obtaining these records falls within VA's 38 C.F.R. § 3.159(c)(2) duty to assist. Further, while this matter is being Remand, and because he reports some private treatment, the Veteran should be contacted and asked to identify any and all non-VA health care provider who has treated him for his service-connected bronchitis, sinobronchial condition with asthma. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and ask that he identify all VA and non-VA healthcare providers that have treated him for his service-connected bronchitis, sinobronchial condition with asthma, since 2007. After securing the necessary release of medical records, all identified records should be obtained. Regardless as to whether or not he responds the Veteran's complete health care file from Ellsworth AFB since 2007 should be obtained. Any negative development should be included in the claims file. 2. After completing the above action and any other development that may be indicated by any response received as a consequence of the actions taken in the above paragraphs, the claim of entitlement to a rating in excess of 30 percent for service-connected bronchitis, sinobronchial condition with asthma should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs