Citation Nr: 1338006 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-09 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from December 1976 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2012, the Veteran testified at a hearing conducted before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board observes that the Veteran filed for service connection for sinusitis. However, post-service medical records show diagnoses of other respiratory disorders in addition to sinusitis. Therefore, the Board has recharacterized the issue as set forth on the title page to encompass all of the Veteran's reported respiratory complaints. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) that his/her mental condition, whatever it is, causes him/her). Additional relevant evidence, consisting of a statement from the Veteran's mother and Internet articles regarding bronchitis, was received in June 2013. The Veteran specifically waived her right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2013). The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand is necessary for further development. The Veteran contends that she has a respiratory disorder related to her military service. The Veteran's service treatment records (STRs) show treatment for, and diagnoses of, sinusitis from January 1977 to September 1977. Post-service treatment records show diagnoses of various respiratory disorders including sinusitis, bronchitis, and allergic rhinitis. The Veteran's contentions throughout this appeal indicate that she has had continuous respiratory symptoms since her military service. The Veteran was afforded a VA examination in February 2010. She was diagnosed with chronic allergic rhinitis. The examiner noted that the Veteran was seen and treated on two separate occasions, one in June 1977 and one in July 1977, for treatment of sinus or nasal-related conditions. The examiner opined that it was left to speculation as to whether the onset of the Veteran's currently diagnosed chronic allergic rhinitis first manifested during the Veteran's active military enlistment in 1977 after review of only two separate medical documentations. The Board notes that, contrary to the February 2010 examiner's indication that the Veteran was only treated twice for sinus or nasal-related conditions in service, her STRs clearly reflect diagnoses of resolving sinusitis in January 1977; chronic sinusitis in March 1977 and September 1977; acute sinusitis in June 1977; and sinusitis in August 1977. Additionally, the examiner did not provide a rationale for why an opinion relating the Veteran's chronic allergic rhinitis would be speculative. In order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Jones v. Shinseki, 23 Vet. App. 382 (2010). Consequently, a remand is necessary to afford the Veteran a new VA examination with an adequate medical opinion. Also, the Veteran appears to receive continuing treatment from the VA Medical Center (VAMC) in Cleveland, Ohio. As the most recent records are dated in September 2010 (with the exception of October 2011 psychiatric treatment records), any additional records should be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service respiratory treatment that the Veteran has received. The Board is particularly interested in records of such treatment that the Veteran may have received from the VAMC in Cleveland, Ohio and any other providers identified by the Veteran. If any such records identified by the Veteran are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed respiratory disorder. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by her and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed respiratory disorder had its clinical onset in service or is otherwise related to service. The examiner should discuss the Veteran's multiple in-service diagnoses of sinusitis in 1977 and her reports of continuing symptoms since service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must specify the reason(s) that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ L. B. YANTZ Acting 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).