Citation Nr: 1338571 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-12 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a sinus disorder, to include as secondary to service-connected asthma with respiratory scarring and as due to a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from November 1989 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied the Veteran's claim for service connection for sinusitis. In January 2011, the Veteran testified before a Decision Review Officer (DRO) at a hearing at the RO. A hearing transcript has been associated with the claims file. In January 2013, the Board denied the instant claim. The Veteran subsequently appealed this denial the United States Court of Appeals for Veterans Claims (Court). In a July 2013 Order and Joint Motion for Remand (JMR), the Court vacated the Board's January 2013 decision and remanded the matter to the Board for additional development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals additional adjudicatory documents as well as an August 2013 VA examination report; such report was not considered by the RO in the October 2012 supplemental statement of the case (SSOC). However, the claim on appeal is being remanded for further development, which will also allow for RO consideration of such a report. See 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that further RO action on the claim for service connection is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In a July 2013 JMR, the parties determined that the Board erred by failing to develop or address a reasonably raised claim of entitlement to service connection for a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317. The parties determined that the Veteran's allegations that her breathing and respiratory problems were the result of her exposure to environmental hazards and chemicals during the Persian Gulf War reasonably raised the issue of entitlement to service connection under the provisions of 38 C.F.R. § 3.317 for a medically unexplained chronic multisymptom illness and the Board was instructed to properly develop such a claim. Therefore, on remand, the Veteran should be afforded a VA examination to determine whether her breathing and respiratory problems were attributable to a medically unexplained chronic multisymptom illness. In addition, the parties determined in the July 2013 JMR that the Board erred by relying upon an inadequate VA opinion in denying the claim for service connection for a sinus disorder on a direct and secondary basis. Specifically, the parties determined that March 2012 and April 2012 VA opinions contained no rationale, impermissibly relied on the absence of in-service documentation of a chronic condition to justify a negative nexus opinion and failed to explain the significance of quotations from medical literature or how such related to the Veteran's case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination found inadequate where examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the service treatment records to provide a negative opinion). Further, the parties agreed that the VA examiner failed to provide an explanation as to whether the Veteran's sinus conditions diagnosed during the pendency of the claim were related to service. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim). As such, on remand, a new VA etiological opinion should be obtained. Given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. On remand, such records should be obtained. As a final point, as detailed in the Introduction, an August 2013 VA respiratory examination report was added to the Veteran's Virtual VA claims file after the issuance of the October 2012 SSOC. Such examination report is potentially pertinent to the claim on appeal. As such, the RO's adjudication of the claim must include consideration of all pertinent evidence added to the claims file since the January 2013 Board decision, to include an August 2013 examination report. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's treatment records from the Central Alabama VA Medical Center (VAMC) pertaining to her claimed sinus and/or respiratory disorders, to include those dated from February 2012 to the present. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 2. After all available records and/or responses from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate examiner, at a VA medical facility. This examination should conform to the guidelines for conducting Gulf War examinations, as set forth in Training Letter 10-01, at a VA medical facility. As indicated below, additional specialist examination(s) should be conducted as needed. The entire claims file, to include a complete copy of this REMAND, must be made available to each examiner designated to examine the Veteran, and the examination report(s) should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate) in a typewritten report. (A) The examiner should note and detail all reported symptoms of a sinus or respiratory disorder. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all sinus and/or respiratory symptoms. (B) The examiner should specifically state whether the Veteran's sinus and/or respiratory symptoms are attributed to a known clinical diagnosis. If so, please specify the diagnosis. The examiner should identify all such disorders that have been present at any time since September 2005. (C) If any symptoms of a sinus and/or respiratory disorder have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from a medically unexplained chronic multisymptom illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The examiner should consider such symptoms as headaches, muscle pain, joint pain, signs or symptoms involving the respiratory system, sleep disturbances and gastrointestinal signs or symptoms. (D) For each diagnosed sinus and/or respiratory disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's military service. (E) For each diagnosed sinus and/or respiratory disorder, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such diagnosed sinus or respiratory disorder had been aggravated beyond the normal progress of the disorder by the Veteran's service-connected asthma with respiratory scarring (previously characterized as an upper respiratory infection). If so, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that her reports must be considered in formulating the requested opinion. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. If any benefit sought on appeal remains denied, the Veteran and her representative must be furnished with an appropriate supplemental statement of the case includes clear reasons and bases for all determinations, reflects review of all pertinent evidence of record (including the VA examination report contained in the Virtual VA file) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate 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). _________________________________________________ MARJORIE A. AUER 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).