Citation Nr: 1639599 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 13-09 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a disability manifested by fainting. 2. Entitlement to service connection for an eye disorder. 3. Entitlement to service connection for an immune disorder, to include a respiratory or sinus disorder. ATTORNEY FOR THE BOARD A. Barner, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1960 to August 1962 and from August 1969 to August 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia (the Atlanta RO), which, in pertinent part, denied entitlement to service connection for a disability manifested by fainting, an eye disorder, and an immune disorder. As will be discussed further below, these matters were remanded by the Board in April 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the April 2015 remand, records were requested from Walter Reed Hospital, which responded with records since 2009. Walter Reed Hospital also provided notice that records prior to 2009 may have been retired to the National Personnel Records Center. As previously explained in the Board's prior remand, the Veteran indicated that he sought treatment for fainting spells at Walter Reed soon after retirement from service. As such, remand is necessary for the RO to request retired Walter Reed records located at the NPRC. In addition, although VA examinations were afforded the Veteran in regards to his eyes, fainting spells and respiratory or sinus conditions, the Board finds that the examiners' opinions are inadequate. See Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). Following an August 2015 VA examination for the Veteran's ears, the examiner opined that the Veteran's black out spells were unwitnessed, and no ENT origin had been conclusively demonstrated. The examiner opined that inner ear disorders generally did not result in loss of consciousness, and that a cardiac origin was most likely, but would have to be appropriately evaluated by a cardiology or internal medicine specialist. By labeling the fainting spells as unwitnessed, the examiner appears to have discounted the Veteran's reported episodes of blacking out or fainting spells, which the Veteran is competent to attest to. Layno v. Brown, 6 Vet.App. 465, 469 (1994) (lay testimony competent to establish presence of observable symptoms). Further, the examiner discussed how inner ear etiology was not conclusively reached; however, the standard for consideration of an inner ear etiology for the fainting episodes is "at least as likely as not." Finally, the examiner suggests additional consideration is necessary by another specialist, leaving the opinion incomplete. Cf . Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) ("When the Secretary's duty to provide a medical opinion is triggered, this duty includes the requirement that the Secretary provide reasonable tests and other examinations necessary to render a meaningful medical opinion."). Although the Veteran underwent July and October 2015 heart examinations, the examiners did not address whether the fainting spells were part of the Veteran's service-connected heart disease, or a separate and distinct disorder, as the Board discussed in the previous remand. The Board now seeks an additional opinion as to whether the Veteran's fainting spells are at least as likely as not caused, or aggravated by his service-connected ischemic heart disease status post myocardial infarction with stent. Following a July 2015 eye examination, the examiner opined that it was less likely than not the Veteran's eye conditions were related to service. Specifically, he reasoned that cataracts are age-related, and are not related to any disease, trauma or event experienced in service, and that dry eye syndrome and upper eyelid blepharochalasis could not be related to any in-service event, disease or trauma. The Board finds that this opinion is conclusory and not well-supported. A September 2015 examiner examined the Veteran in consideration of his fainting spells and respiratory and sinus problems, and completed questionnaires for sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx; respiratory conditions; central nervous system and neuromuscular diseases; and seizure conditions. Regarding an immune system complication to include respiratory or sinus conditions, the examiner opined that the Veteran did not have chronic sinusitis, but did have allergic, vasomotor, bacterial or granulomatous rhinitis and a deviated nasal septum. The examiner opined that it was less likely than not that the Veteran's condition was directly related to service. He reasoned that there was no pertinent service treatment records; there was a longitudinal trend of normal pertinent exams and temporal relationships; and, a link could not be established between claimed sinusitis/rhinitis condition and service. The examiner opined that there was no current diagnosis of respiratory condition, such that it was less likely than not a claimed respiratory condition was directly related to service. Regarding a respiratory or sinus condition, the Board finds that although the examiner suggested there was a longitudinal trend of normal pertinent exams, he failed to discuss or explain the treatment records showing symptomatology and or diagnoses of sinusitis and or rhinitis since at least 1996. Here, the Board finds that the opinion which focuses on the lack of diagnosed respiratory condition fails to explain the daily use of inhalational bronchodilator therapy, and it is unclear to the Board whether this is in response to the rhinitis or another condition. Regarding fainting spells, the examiner concluded that there was no diagnosis for the claimed disability manifested by fainting because there was no pathology. The examiner found that although the Veteran reported experiencing dizziness, head spinning, sweating, and loss of consciousness, there was no diagnosis because there was no pathology to render a diagnosis. The Board finds that the examiner did not provide adequate supporting rationale for his opinion in light of the Veteran's reported symptomatology. In addition, the Veteran contended that each of these disabilities is due to his exposure to herbicides while in Vietnam. Although the Veteran's claims on appeal are not included on the list of diseases presumptively service-connected for herbicide exposure, remand is necessary for an opinion to determine whether the Veteran's fainting spells, immune system complication to include respiratory or sinus conditions, and eye conditions are otherwise directly related to presumed herbicide exposure during military service. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange). 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). Expedited handling is requested.) 1. The AOJ should take all indicated action in order to obtain and associate with the record copies of any outstanding retired Walter Reed Hospital medical records, available at the NPRC, and VA treatment records related to the Veteran's fainting spells, sinuses or respiratory condition, or eye conditions. 2. After pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for VA examination(s) to determine the nature and etiology of his (1) fainting spells, (2) respiratory and sinus conditions, and (3) eye conditions. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner(s) should be provided access to Virtual VA and VBMS for claims folder review, to include service treatment records, post-service medical records, and lay assertions, and such review should be documented in the report. All necessary diagnostic tests, as determined by the examiner, should be completed and all pertinent symptomatology and findings should be reported in detail. It should be noted that the Veteran is presumed to have been exposed to herbicide agents during his military service in Vietnam. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not the Veteran's fainting spells are causally or etiologically related to his military service, including herbicide exposure therein (notwithstanding the fact that the disorder is not presumed to be associated with herbicide exposure). If the examiner determines that they are not related to service, then the examiner should opine as to whether it is at least as likely as not that the Veteran's fainting spells are (a) caused by or (b) permanently worsened by his service-connected ischemic heart disease, status-post myocardial infarction with stent. The examiner should also state whether it is at least as likely as not that the Veteran's respiratory or sinus conditions are etiologically related to his military service, including herbicide exposure therein (notwithstanding the fact that the disorder is not presumed to be associated with herbicide exposure). The examiner should also state whether it is at least as likely as not that the Veteran's eye conditions are etiologically related to his military service, including herbicide exposure therein (notwithstanding the fact that the disorder is not presumed to be associated with herbicide exposure). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for the VA medical opinions is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or 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 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 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR 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).