Citation Nr: 1644782 Decision Date: 11/29/16 Archive Date: 12/09/16 DOCKET NO. 10-05 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed as breathing problems, to include as secondary to the service-connected heart disorder. 2. Entitlement to service connection for arthritis of the right hip. 3. Entitlement to service connection for arthritis of the left hip. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from October 1967 to August 1971, including service in Vietnam from January 1969 to January 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta Georgia, and a June 2010 rating decision of the VA RO in Columbia, South Carolina. Jurisdiction lies with the RO in Atlanta, Georgia, where the Veteran resides. The April 2008 rating decision denied service connection for respiratory problems. The June 2010 rating decision denied service connection for arthritis of the left hip and arthritis of the right hip. The Veteran testified at a November 2014 hearing held via video conference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with electronic records maintained in the Virtual VA system. These matter were remanded in January 2015, August 2015, and February 2016. The February 2016 decision denied a claim for service connection for bilateral jungle rot of the feet and this issue is no longer on appeal. The issues of entitlement to service connection for arthritis of the bilateral hips are remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's shortness of breath (dyspnea) with exertion is secondary to his service-connected heart condition. CONCLUSION OF LAW The criteria for service connection for dyspnea with exertion have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's favorable disposition concerning claims for service connection for dyspnea with exertion, the Board finds that no discussion of VCAA compliance is necessary at this time; any notice defect or duty to assist failure is harmless. Legal Criteria, Factual Background, and Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). The regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, with respect to the claims. The Board remanded the Veteran's claim in February 2016 for an additional examination to determine if the Veteran had a respiratory disorder related to service or a service-connected disability. Prior examinations had been deemed as insufficient. The Veteran was afforded the examination in April 2016. The examiner indicated that a November 5, 2015 chest x-ray was negative and pulmonary function tests from the same date showed no obstructive lung disease. There was mild decrease in lung volumes and CO diffusion which was not consistent with restrictive lung disease. The objective testing did not support that the Veteran has a lower respiratory tract disease. However, the examiner indicated that the Veteran's shortness of breath with exertion is secondary to his heart disease. The Veteran was service-connected for coronary artery disease, on the basis of herbicide exposure, effective March 29, 2007. Therefore, given the medical evidence outlined above, the Board concludes that the Veteran's dyspnea with exertion is secondary to his service-connected heart disability, and service connection for dyspnea with exertion is warranted. ORDER Entitlement to service connection for dyspnea with exertion is granted. REMAND Concerning the claims for service connection for arthritis of the right hip and arthritis of the left hip, the August 2015 remand noted that the March 2015 VA examination was inadequate and directed that a new VA examination be conducted. The examiner was asked to consider and discuss the evidence in the claims file, including but not limited to, private treatment records from November 2002, which note that following an x-ray the Veteran was found to have spondylosis and degenerative changes, VA treatment records including a January 2010 VA problem list showing a diagnosis of "osteoarthritis LS/hip," and an August 2013 VA x-ray which showed minimal osteoarthritis of the hips bilaterally. The examiner was also asked to specifically address the Veteran's statements regarding having jumped out of helicopters and out of a tank while on duty in Vietnam, which the Board had accepted as credible and consistent with the circumstances of his military service as an Armor Crewman. In response, a VA examination was conducted in November 2015. The examiner indicated a diagnosis of right and left hip osteoarthritis. The examiner indicated that it was less likely than not that the Veteran incurred bilateral hip arthritis secondary to his military occupation, as there were "no medical records, to chronologically document (that are labeled) the first diagnosis is 2002, to medically correlate these claims." The examiner also indicated that jumping off tanks "does not necessarily cause post-traumatic arthritis development," and that because the Veteran's "DD 214 has no parachutist badge achievement, cannot speak to the jumping out of aircrafts and how it relates." The examiner stated that medical literature indicates that the development of arthritis increases dramatically after the age of 45, and more than 1/3 of individuals over the age of 65 have osteoarthritis. Although the Veteran's MOS was that of an Armor Crewman, because he had post-service occupations as an electronic technician and poultry farm operator, the examiner stated that it would be speculation to say which of these caused his arthritis. First, the examiner stated that jumping off tanks does not "necessarily cause" post-traumatic arthritis, but provided no explanation for that statement. Also, the examiner disregarded the Veteran's statements that he jumped out of helicopters in service because the Veteran did not have parachutist badge, but was directed in the August 2015 remand to consider the statement as the Board had accepted it as credible and consistent with the circumstances of his military service. Also, while the examiner stated that it was less likely than not that the Veteran incurred bilateral hip arthritis secondary to his military occupation, she also indicated that it would be speculation to say whether his MOS in service or post-service occupations caused his arthritis, which is essentially a non-opinion. See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (finding that, when an examiner is unable to come to an opinion, such evidence is neither positive nor negative support for service connection, and is therefore not pertinent evidence). Based on the above, the Board found that the November 2015 VA examination was inadequate, and the Veteran should be afforded a new VA examination with an orthopedic specialist to determine the etiology of his arthritis of the right and left hip. The Veteran was afforded an additional VA examination in March 2016. The examiner determined that the Veteran's bilateral hip disabilities are simply referred pain from his back. However, these findings fail to consider previous diagnoses of bilateral hip osteoarthritis with objective testing, specifically and most recently an August 2013 x-ray from the Augusta VA Medical Center. Thus, an addendum must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain updated treatment records from the Atlanta VA Medical Center and the Augusta VA Medical Center, dated since November 2015. 2. Return the claims file to the March 2016 examiner, if available, or to another orthopedic specialist, for an addendum opinion. If deemed necessary, an additional examination should be accomplished. The claims file, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report to include consideration of both the paper and electronic claims file. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's diagnosed arthritis of the right and left hips onset during the Veteran's service, was manifest to a compensable degree within one year after discharge from service, or is otherwise related to service. The examiner is requested to specifically address the Veteran's statements regarding having jumped out of helicopters and out of a tank while on duty in Vietnam. It should be noted that the Board has accepted the Veteran's assertions as credible and consistent with the circumstances of his military service as an Armor Crewman. 38 U.S.C.A. § 1154. The examiner should cite to the medical and competent lay evidence (lay statements) of record. The examiner is also required to fully explain the rationale for all opinions given; including an explanation for all conclusions reached based on medical principles and the medical and lay evidence (in particular, the Veteran's statements) of record. If the examiner is unable to provide such an opinion without resorting to speculation or for any other reason, an adequate explanation should be provided as to why such an opinion cannot be provided. 3. Review the claims file to ensure that all of the foregoing requested development is completed. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case (SSOC) and provide the Veteran and his representative the requisite period of time to respond. The case 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 matter or matters the Board has remanded. 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 2014). ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs