Citation Nr: 18151714 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-27 063A DATE: November 20, 2018 REMANDED Entitlement to service connection for a respiratory disorder, to include chronic bronchitis, sinusitis, and/or pneumonia, is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected bilateral flatfeet, is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected bilateral flatfeet, is remanded. Entitlement to service connection for a bilateral knee disorders, to include as secondary to service-connected bilateral flatfeet, is remanded. Entitlement to service connection for a heart arrhythmia (claimed as irregular heartbeat) is remanded. (The issue of entitlement to an initial evaluation in excess of 10 percent for bilateral flatfeet with arthritis will be addressed in a separate Board decision.) REASONS FOR REMAND The Veteran served on active duty from May 1969 to January 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in December 2017, at which time it was remanded for additional development; the case has been returned to the Board at this time for further appellate review. The Board finds that another remand is necessary at this time for the reasoning below. Respecting the respiratory claim, the Board reflects that the Veteran has reported year-round bronchitis, fluid retention, and sinus drainage. Likewise, in his May 2012 notice of disagreement, the Veteran reported having pneumonia three times during service with recurrent bouts after service. A review of the Veteran’s service treatment records show treatment for acute respiratory disease in June 1969 and for bronchitis in February 1970. Additionally, the Veteran’s post-service treatment records demonstrate treatment for chronic bronchitis in February 2014, for acute bronchitis/sinusitis in February 2015, and for bronchitis/pneumonia in April 2015. The January VA 2012 examiner found that the Veteran’s claimed bronchitis and recurrent pneumonia were less likely than not the result of his military service, noting no current respiratory condition. The Board remanded for an additional examination and medical opinion in December 2017, as that examination did not account for the subsequent treatment for respiratory complaints. The Veteran underwent another VA examination in May 2018, at which time the examiner again stated that examination of the Veteran revealed a normal respiratory examination at that time. The examiner noted that the Veteran’s current respiratory disorder was less likely than not related to military service, as after acknowledging the treatment for respiratory complaints in service, the examiner found that the “military findings [were] inconsistent with current clinical presentation of a normal respiratory examination.” The Board finds that the May 2018 VA examiner’s opinion is inadequate for the same reasoning as articulated in December 2017. Namely, the May 2018 VA examiner merely indicated that the Veteran did not have a current respiratory disorder present and did not address whether the noted chronic bronchitis, acute bronchitis/sinusitis, and bronchitis/pneumonia. Accordingly, a remand is necessary in order to obtain another VA examination and medical opinion from an examiner who has not previously participated in this decision in order to obtain an adequate VA examination and medical opinion which addresses whether any respiratory disorder found is related to military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). With regards to the Veteran’s claimed cervical spine disorder, the May 2018 VA examiner stated that there was no nexus between or aggravation due to the Veteran’s service-connected disabilities, including his bilateral flatfeet. The Board notes that such opinion is conclusory in nature and is unsupported by any rationale. Consequently, a remand is necessary as that medical opinion is not adequate and to ensure substantial compliance with the Board’s previous remand directives. See Barr, supra; Stegall, supra. Turning to the lumbar spine and bilateral knee claims, the May 2018 examiner opined that the Veteran did not have any “significant abnormal weightbearing[] noted to the feet to cause any aggravation or undue bearings to the” lumbar spine and bilateral knees. She therefore concluded that there was no nexus between or aggravation due to the Veteran’s service-connected disabilities, to include his bilateral flatfeet. The examiner did not discuss the February 2011 private chiropractor’s statement, nothing that the Veteran’s pes planus contributes to his low back and bilateral leg pain. The examiner’s opinion is therefore inadequate and a remand is necessary in order to ensure compliance with the previous remand directives. See Id. With respect to the heart arrhythmia, the examiner noted that the Veteran was diagnosed with rare premature atrial contractions and occasional premature ventricular contractions, which were shown by Holter monitor testing. The examiner noted that it did not pose a major problem, and that it was considered a separate entity from the Veteran’s service-connected coronary artery disease (CAD), but was due to other causes such as his caffeine use and alcohol consumption, citing a Mayo Clinic weblink; no rationale or other explanation for this conclusion was provided. The examiner additionally stated conclusively that the Veteran'’ heart arrhythmia was not caused by, proximately due to, or aggravated/worsened by his CAD, again without providing any rationale for that conclusion. The Board finds that a remand is necessary in order to obtain another VA examination and medical opinion from an appropriate specialist in order to ensure compliance with the previous remand directives. See Id. Finally, on remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Atlanta and Dublin VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner who has not previously participated in this case in order to determine whether his any respiratory disorder, including chronic bronchitis, sinusitis, or pneumonia, are related to his service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all respiratory disorders found in the claims file during the appeal period, to include chronic bronchitis, sinusitis, pneumonia, even if no respiratory disorder is found during examination. If the examiner disputes whether any of the noted respiratory diagnoses found in the records during the appeal period, including chronic bronchitis, sinusitis, and/or pneumonia, were properly diagnosed, including whether such were mis-diagnosed, the examiner should fully explain any such conclusions with a detailed rationale. Then, for any respiratory disorder found during the appeal period noted above even if such had resolved during the appeal period and are not found on examination, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include the noted acute respiratory disease in June 1969 and the treatment for bronchitis in February 1970. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Ensure that the Veteran is scheduled for a VA examination with a cardiologist or other appropriate cardiac arrhythmia specialist who has not previously participated in this case in order to determine whether his heart arrhythmia is related to his service or a service-connected disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all heart arrhythmia disorders found, to include rare premature atrial contractions and occasional premature ventricular contractions. First, the examiner should opine whether the Veteran’s heart arrhythmia disorder is separate and distinct from, or part and parcel or a symptom of his service-connected coronary artery disease with myocardial infarction. A detailed rationale for any finding must be provided with respect to this initial finding. Then, for any separate and distinct heart arrhythmia disorders found, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or within one year of discharge therefrom, or are otherwise the result of military service, to include any presumed exposure to herbicides as a result of his service in the Republic of Vietnam. Finally, separate and distinct heart arrhythmia disorders found that is not directly found to be related to service, the examiner should also opine whether separate and distinct heart arrhythmia disorders at least as likely as not were (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected coronary artery disease with myocardial infarction. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner who has not previously participated in this case in order to determine whether his cervical spine, lumbar spine, and bilateral knee disorders are related to his service or a service-connected disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all cervical spine, lumbar spine, and bilateral knee disorders found, to include any arthritic conditions thereof. Then, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or within one year of discharge therefrom, or are otherwise the result of military service. Next, for any cervical spine, lumbar spine, or bilateral knee disorders found that is not directly found to be related to service, the examiner should also opine whether any cervical spine, lumbar spine, and bilateral knee disorders at least as likely as not were (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected bilateral flatfeet, to include any abnormal gait or weightbearing as a result of that disability. The examiner should specifically address the February 2011 private chiropractor’s statements that his flatfeet contribute to low back and bilateral leg pain in any opinion rendered. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel