Citation Nr: 1602095 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 12-29 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include rhinitis and asthma. 2. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and C. N. Bash, M.D. ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 2000 to November 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the case was remanded to afford the Veteran a hearing. In October 2015, a videoconference hearing was held before the undersigned; a transcript is associated with the record. As noted in the May 2015 Board remand, the issues of service connection for hearing loss and sleep apnea have been raised by the record (in a March 2015 medical opinion), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran claims that she has a respiratory disorder, including asthma, and headaches due to her active duty service. A remand is required to obtain additional medical opinions. An April 2012 VA addendum examination report includes the opinions that 1) the Veteran's "previous diagnosis of asthma was incorrect," 2) "chronic nasal obstruction caused by the septal deviation and resulting in significant rhinitis and mouth breathing can result in headaches and 3) "the diagnosed conditions of deviated septum with chronic rhinitis, and nasal valve collapse affecting nasal resistance in the presence of high nasal airflow, and the diagnosed condition of migraine headaches are not related to a specific exposure event experienced by the Veteran during service in Southwest Asia." The examiner noted that the Veteran had been diagnosed with asthma after undergoing pulmonary function testing (PFT) in 2009; however, these records were not available for review. Subsequent to the April 2012 VA opinion, private treatment records (including the 2009 PFT) and opinions in support of the Veteran's claim were added to the record. Specifically, statements (and hearing testimony) from Dr. Bash note that the Veteran's respiratory complaints are diagnosed as chronic persistent asthma (he also testified as to findings of sinusitis and bronchitis), are related to her active duty service and contribute to her headaches. Further, the Veteran has testified that she experienced respiratory symptoms and headaches during her active duty service which have persisted; however, she did not seek treatment for these complaints until approximately 2009. Because the April 2012 opinion does not address the Veteran's allegations of ongoing respiratory and headache symptoms since service, it is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Accordingly, another examination and opinion, which shows consideration of the conflicting evidence of record, is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Finally, since the claims file is being returned it should be updated to include all outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include updated VA treatment records. 2. Schedule the Veteran for an appropriate VA (ENT or pulmonary disorders) examination to determine the current nature and likely etiology of any respiratory (including asthma, rhinitis, sinusitis and/or bronchitis) and/or headache disorder. The claims folder should be made available to the examiner for review in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a) Please identify (by medical diagnosis) each respiratory and/or headache disability entity found. (b) Please identify the likely etiology for each respiratory and/or headache disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that such is related to the Veteran's service The examiner is to specifically consider and address the Veteran's assertions regarding her claimed in-service respiratory and headache symptoms and post-service continuity of such symptoms and the statements/opinions in support of her claims from Dr. Bash. The examiner should reconcile the April 2012 VA addendum opinion and the opinions of Dr. Bash. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. 3. The AOJ should then review the record and readjudicate the Veteran's claims. If either remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).