Citation Nr: 1340028 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-38 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disability, to include degenerative disc disease (DDD). 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a right ankle disability. 6. Entitlement to service connection for a left ankle disability. 7. Entitlement to service connection for a neck disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty from May 1973 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the aforementioned claims on appeal. In June 2011, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ), via video teleconference. During the Veteran's hearing, he requested that the Board recharacterize his previously certified claim of entitlement to service connection for spina bifida, to that of entitlement to service connection for a back disability, to include DDD. See Video Conference Hearing Transcript, p. 2. These claims came before the Board in January 2012. At that time, the Board noted that on June 29, 2011, the Veteran withdrew his appeal as to his claim of entitlement to service connection for flat feet on the record during his video conference hearing. As such, the Board dismissed this claim. See Board Decision, January 11, 2012. The Board also remanded the remaining claims for additional evidentiary development. Id. At the time of the remand, a claim for service connection for sinusitis was also in appellate status. Subsequently, the Appeals Management Center (AMC) granted service connection for sinusitis. Therefore, this claim in no longer before the Board. 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 on his part. REMAND As noted in the Introduction section above, the Board remanded the Veteran's claims of entitlement to service connection for a back disability, asthma, bilateral knee disabilities, bilateral ankle disabilities and a neck disability in January 2012, for additional evidentiary development, to include multiple VA examinations. Subsequently, these examinations were scheduled to take place in April 2013. Unfortunately, due to the Veteran's relocation from Oklahoma to the Philippines, he was unable to attend these examinations. The Board finds the Veteran's relocation to be good cause for his failure to report to the previously scheduled examinations. See 38 C.F.R. § 3.655 (2013). Further in this regard, the Board notes that the claim for sinusitis was granted by way of a May 2013 rating decision. As noted above, this claim is no longer in appellate status. Regarding the scheduling of examinations, however, the Board is aware that the rating decision references as evidence a May 10, 2013 VA examination. This examination is not in the claims file (to include Virtual VA). Although the Board is cognizant that it is finding that the Veteran had good cause not to appear for some examinations when there is some evidence he was able to show for another one, the Board finds that the evidence is unclear here, as the VA examination is not currently in the file and the Board is aware that the Veteran's move to the Philippines may have caused travel issues that allowed him to attend one but not all scheduled examinations. Upon remand, the AMC should seek a copy of the cited May 10, 2013 VA examination and associate it with the claims file for later Board review as it may be relevant to other claims that remain in appellate status. Under 38 U.S.C.A. § 5103A (West 2002), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Evidence of a link between current disability and service must be sufficient and, depending on the nature thereof, may include an assertion by the Veteran linking the two. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a conclusory, generalized statement relating an in-service illness to present medical problems is not sufficient to necessitate obtaining a VA examination and that medical examinations are not to be routinely and automatically provided to all veterans in disability cases involving nexus issues). The threshold for finding a link between a current disability and service is low. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); see McLendon v. Nicholson, 20 Vet. App. at 83. In this case, examinations in support of the claims for service connection for a back disability, including DDD, asthma, bilateral knee disabilities, bilateral ankle disabilities and a neck disability are necessary. The Veteran's service treatment records establish that he received treatment for respiratory, back, knee and right ankle complaints during service. At his hearing, he provided credible testimony that, although he did not receive treatment for neck complaints in service, he began experiencing neck pain, a symptom capable of lay observation, during that time frame, in the 1980s. See Video Conference Hearing Transcript, p. 6. He also testified that he began experiencing left ankle pain during service, in the late 1970s or early 1980s. See id. at p. 8. Post-service medical evidence establishes that the Veteran currently has respiratory, back, neck, knee and ankle disorders and asthma. According to the Veteran, these disorders initially manifested during service, including pain and breathing difficulties, and have continued to do so since discharge from service in 1993. The Veteran's statements in this regard represent evidence of continuity of lay-observable respiratory, back, neck, knee and ankle symptomatology. To date, however, VA has not obtained a medical opinion as to whether any current respiratory, back, neck, knee or ankle disorder was incurred in or aggravated by service. Moreover, when evaluating the Veteran's claim for service connection for asthma, the RO treated the disorder as if it pre-existed service. The Veteran's entrance examination does not mention this disorder, but service treatment records include reported histories of childhood asthma. Given this fact, a medical opinion is also necessary to address the possibility of in-service aggravation of the asthma. The Veteran further asserts that he was exposed to asbestos during service, including while serving aboard the USS Enterprise, USS Davidson and the USS Richard E. Byrd, and his exposure in this regard caused or aggravated his respiratory symptoms. Pursuant to the prior Board remand, the AMC completed additional development to verify exposure, to include associating additional service records and associating relevant memos with the file. Upon this second remand, the AMC should ensure that there is no additional development required to verify the alleged asbestos exposure, and thereafter, make a determination as to whether the Veteran was exposed to asbestos during service. Accordingly, the case is REMANDED for the following action: 1. Seek a copy of the May 10, 2013 VA examination referenced in the May 2013 rating decision that granted service connection for sinusitis. If this examination report is unavailable, place this determination in the claim file. 2. Ensure that there is no additional development required to verify the alleged asbestos exposure, and thereafter, make a determination as to whether the Veteran was exposed to asbestos during service. Place this determination in the claim file. 3. After completing the development outlined in directives 1 and 2, arrange for the Veteran to undergo a VA examination in support of his claim for service connection for asthma. The claims file should be provided to and be reviewed by the examiner in conjunction with the examination. Advise the examiner that the Veteran is competent to report observable symptoms experienced during and after service, including, in part, breathing difficulties, and that any opinion proffered should contemplate these symptoms. The examiner must conduct a thorough evaluation, including all indicated tests, and then follow the instructions below: a) Record in detail the Veteran's history of pre-service, in-service and post-service respiratory complaints and alleged asbestos exposure (including during employment); b) Diagnose any respiratory disorder shown to exist, including, if appropriate, asthma; c) Opine whether the diagnosed disorder(s) is (are) at least as likely as not etiologically related to the Veteran's period of active service, including reported observable respiratory symptoms, documented respiratory complaints and alleged asbestos exposure as described; d) If not, opine whether the disorder pre-existed service and, if so, whether it increased in severity beyond its natural progress during service; e) Provide a detailed rationale, with specific references to the record and medical treatise evidence, for any opinions expressed; and f) If an opinion cannot be expressed without resort to speculation, discuss why such is the case and whether there is additional evidence that is outstanding that would aid in providing such an opinion. 4. Arrange for the Veteran to undergo a VA examination in support of his claims for service connection for knee, ankle, back, and neck disorders. The claims file should be provided to and be reviewed by the examiner in conjunction with the examinations. Advise the examiners that the Veteran is competent to report observable symptoms experienced during and after service, including, in part, knee, ankle, back, and neck pain, and that any opinion proffered should contemplate these symptoms. The examiners should conduct thorough evaluations, including all indicated tests, and then follow the instructions below: a) Record in detail the Veteran's history of pre-service, in-service and post-service knee, ankle back, and neck symptoms; b) Diagnose any knee, ankle, back, and neck disorder shown to exist; c) Opine whether the disorder(s) is(are) at least as likely as not etiologically related to the Veteran's period of active service, including reported observable knee, ankle, back, and neck symptoms and documented knee, ankle, back, and neck complaints; d) Provide a detailed rationale, with specific references to the record and to medical treatise evidence, for the opinions expressed; and e) If an opinion cannot be expressed without resort to speculation, discuss why such is the case and whether there is additional evidence that is outstanding that would aid in providing such an opinion. 5. Review the examination reports to ensure that they comply with these remand instructions and, if not, return them to the examiners for correction. 6. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The claims should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). _________________________________________________ Nathaniel J. Doan 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 the appeal. See 38 C.F.R. § 20.1100(b) (2013).