Citation Nr: 18148945 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 11-16 699 DATE: November 8, 2018 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for bronchial asthma is remanded. Entitlement to service connection for a lung disorder other than bronchial asthma is remanded. REASONS FOR REMAND The Veteran had active duty for training (ACDUTRA) in the Army National Guard from February 1974 to June 1974, and active duty service in the Army from October 1977 to March 1978. In April 2014, the Board remanded the issue of whether new and material evidence has been received to reopen the claims for asthma, a lung disorder other than asthma, and a back disability to obtain outstanding service treatment and military personnel records. Subsequent to the Board’s April 2014 remand, new service treatment and military personnel records were associated with the claims folder. In December 2016, the Board reconsidered the evidence and denied the service connection claims for bronchial asthma and lung disorder on the merits. The Board also remanded the issue of whether new and material evidence was received to reopen the service connection claim for a back disability for the RO to issue a supplemental statement of the case (SSOC). The Veteran appealed the Board’s December 2016 decision to the United States Court of Appeals for Veterans Claims (Court), and by a July 2017 Order, the Court granted a Joint Motion for Partial Remand (JMPR), that vacated and remanded the portions of the Board’s decision that denied service connection for bronchial asthma and a lung disorder. In January 2018, the Board reopened and remanded the Veteran’s claim for service connection for a back disability, as well as remanded the service connection claims for bronchial asthma and a lung disorder in compliance with the JMPR. After a careful review of the July 2018 VA examinations and associated nexus opinions, the Board finds that an additional remand is necessary to provide the Veteran with new adequate VA examinations prior to making a decision on the merits. See Stegall v. West, 11 Vet. 268, 271 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Back Disability In the January 2018 remand, the Board asked that the examiner address a prior 2011 VA examination report, a private medical opinion dated in May 2003, and the Veteran’s lay assertions. The Board then asked that the examiner provide an opinion as to whether any back disability clearly and unmistakably preexisted the Veteran’s period of ACDUTRA or active duty, and if so, whether it clearly and unmistakably was not aggravated during service. A July 2018 radiology report generated in conjunction with the July 2018 VA examination revealed evidence of arthritic changes in the thoracic spine, anterior wedge compression fracture at T9, and evidence of previous surgical procedures involving the lower cervical and lumbar spines. The July 2018 VA nurse practitioner confirmed diagnoses of lumbar strain and degenerative arthritis of the spine. The nurse practitioner then opined that the claimed condition was less likely than not related to service. The nurse practitioner listed the evidence mentioned in the Board’s January 2018 remand, and then explained: The opinion in 2001 was the July examination…which doesn’t give rationale. There is quite a bit of evidence of back injury before the claimant entered service. The claimant gave history of baseball injury and the file shows extensive post service surgeries on his spine. There is no evidence that would be able to provide evidence that any injury in the military contributed to his chronic and recurring back surgeries and condition. The nurse practitioner further explained: There are no longitudinal treatment records for treatment of lumbar spine condition while the Veteran was in the service which would provide support for another opinion. Therefore, this opinion is supported. Any complaints of back pain noted in service and afterwards are consistent with natural progression of preexisting T8 fracture noted in the records…[the private opinion dated in May 2003] repeats the history given by the Veteran of injury to the back while in the service….[but] does not provide a rationale as to why he [the doctor] is making the statement about the Veteran’s back condition being service related. Thereafter, in a separate document, the nurse practitioner opined that the claimed condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury. The nurse practitioner explained: There is no evidence that the back condition was aggravated during service except for the present examination today per his history. But [a review of the claims file] gave conflicting history of a prior back injury so since no treatment records exists other than this opinion is supported. Any complaints of back pain noted in service and afterwards are consistent with natural progression of the pre-existing T8 fracture noted in the records. [The May 2003 private opinion]…does not provide a rationale. On review, the Board finds this opinion inadequate and confusing. First, the nurse practitioner provided contradictory opinion as if the condition did not pre-exist service and then noted that it clearly and unmistakably did pre-exist service. Furthermore, the rationale provided in this opinion amounts to just conclusory statements without any explanation. The nurse practitioner failed to address the lay assertions but rather disregarded them by saying that the evidence “other than his lay assertions” showed it was not aggravated. Lastly, even though the nurse practitioner noted that there was conflicting evidence as to whether the disability preexisted service, she concluded that it clearly and unmistakably preexisted service. Accordingly, the Board finds that a remand is necessary to provide the Veteran with a new VA examination to determine the nature and etiology of his back disability. Asthma and Lung Disorder In the January 2018 remand, the Board asked that the examiner address a prior 2011 VA examination report, a private medical opinion dated in June 2003, and the lay assertions from the Veteran and his “buddies”. The Board then asked that the examiner identify all currently diagnosed disabilities, to include COPD and asthma, opine whether any disorder clearly and unmistakably preexisted the Veteran’s period of ACDUTRA or active duty, and if so, whether ir clearly and unmistakably was not aggravated during service. Lastly, the Board asked for an opinion on direct basis, especially for the COPD. A July 2018 radiology report generated in conjunction with the July 2018 VA examination revealed chronic COPD and no acute pulmonary pathology. The same nurse practitioner who conducted the back examination also conducted the July 2018 respiratory disorders examination, where diagnoses of asthma and COPD were confirmed. The nurse practitioner listed the evidence mentioned in the Board’s January 2018 remand, and opined that the asthma clearly and unmistakably preexisted service, and clearly and unmistakably was not aggravated during service. The nurse practitioner explained: There is no evidence or nexus for asthma exacerbation during service. There is definite evidence of asthma before entering the service and there are not in the [file] longitudinal treatment records for asthma treatment while in the service. Any complaints of asthma noted in service and afterwards are consistent with natural progression of the pre-existing asthma noted in the records. [The private June 2003 opinion] states that the Veteran’s asthma was aggravated in the service but he provides no rationale and he does not cite reviewing any service treatment records to make that conclusion. The more contemporaneous documentation for a long history of asthma was considered more reliable than statements given years later. Here again, the Board finds the opinion inadequate. The nurse practitioner simply noted that the disability was clearly and unmistakably not aggravated because the complaints are a natural progression of the disability, but made no reference to the lay assertions that the Veteran was asymptomatic prior to service and symptomatic during service. Furthermore, the nurse practitioner did not provide any opinion regarding the nature and etiology of the Veteran’s COPD. Lastly, the opinion stated that there was no “nexus for asthma exacerbation,” which is not responsive to the question posed. Accordingly, the Board finds that a remand is necessary to provide the Veteran with a new VA examination to determine the nature and etiology of his asthma and COPD. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since the August 2018 SSOC are associated with the claims file. 2. Then, provide the Veteran with a new VA examination by a VA physician to determine the nature and etiology of his back disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed back disabilities since the March 2010 petition to reopen. (b) Elicit from the Veteran the history and symptoms of his pre-service, in-service, and post-service back disabilities. (c) For each currently diagnosed back disability, indicate whether it clearly and unmistakably pre-existed his period of ACDUTRA or active duty, and if so, whether it clearly and unmistakably was NOT aggravated during service. In doing so, please address the objective medical evidence as well as the Veteran’s competent lay assertions. (d) For each currently diagnosed respiratory disorder that did not clearly and unmistakably pre-exist the Veteran’s service, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) had its onset during ACDUTRA or active duty service or is otherwise causally or etiologically related to it. The examiner should provide a complete rationale for all opinions. 3. Then, provide the Veteran with a new VA examination by a VA physician to determine the nature and etiology of his respiratory disorders, to include asthma and COPD. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed respiratory disorders, to include asthma and COPD. (b) Elicit from the Veteran the history and symptoms of his pre-service, in-service, and post-service respiratory disorders. (c) For each currently diagnosed respiratory disorder, to include asthma and COPD, indicate whether it clearly and unmistakably pre-existed his period of ACDUTRA or active duty, and if so, whether it clearly and unmistakably was NOT aggravated during service. In doing so, please address the objective medical evidence as well as the Veteran’s competent lay assertions. (d) For each currently diagnosed respiratory disorder that did not clearly and unmistakably pre-exist the Veteran’s service, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) had its onset during ACDUTRA or active duty service or is otherwise causally or etiologically related to it. The examiner should provide a complete rationale for all opinions. 4. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel