Citation Nr: 18151963 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-46 132 DATE: November 20, 2018 ORDER Entitlement to service connection for exercise induced bronchospasm, claimed as asthma, is denied. REMANDED Entitlement to service connection for scoliosis with chronic, low, mid and upper back pain is remanded. Entitlement to service connection for thoracic outlet syndrome is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has exercise induced bronchospasm due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for exercise induced bronchospasm have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2005 to August 2008. This matter is on appeal from a July 2013 rating decision, which denied entitlement to service connection for asthma and scoliosis with chronic, low, mid and upper back pain, and a July 2016 Statement of the Case, which denied entitlement to service connection for asthma; scoliosis with chronic low, mid and upper back pain; and thoracic outlet syndrome. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for exercise induced bronchospasm, claimed as asthma is denied. The Veteran contends that she has exercise induced bronchospasm that is related to an in-service injury, event, or disease. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of exercise induced bronchospasm, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records from the Veteran’s period of active service from June 2005 to August 2008 do not reflect any complaints, findings, or treatment for asthma. A January 2008 Post-Deployment Health Assessment documented the Veteran’s response that she was “sometimes” exposed to smoke from burning trash or feces and sand and dust during her deployment to Iraq from September 2006 to December 2007. In addition, she reported having no difficulty breathing. An April 2008 Post-Deployment Health Reassessment (PDHRA) documented the Veteran’s negative response to whether she had any major concerns regarding health effects of something she may have been exposed to while deployed in Iraq from September 2006 to December 2007. The PDHRA also reported that the Veteran was in good health and that her health was about the same as it was when she deployed. A May 2008 report of medical history documented the Veteran’s negative response to whether she had ever had asthma or any breathing problems related to exercise, weather, or pollens. A May 2008 medical examination reported that the Veteran’s sinuses and lungs were normal and did not report asthma as a physical abnormality. The first evidence of the Veteran’s respiratory problems was in June 2010, nearly two years after the Veteran’s discharge in August 2008. The report from a June 2010 pulmonary function test reported that the Veteran had a history of exercise-induced asthma. The report found the Veteran to have minimal airways obstruction that could be consistent with asthma. Another pulmonary function test was also conducted in June 2010, which resulted in a diagnosis of exercise-induced asthma. During the testing, the Veteran reported that she had been exposed to smoke from burning garbage, tires, and human waste in Iraq from September 2006 to December 2007. A July 2010 outpatient note from an Army health clinic reported that recent pulmonary function tests confirmed a diagnosis of exercise induced asthma. The Veteran was prescribed an albuterol inhaler and directed to take two puffs 30 minutes prior to exercise. A July 2011 outpatient note from an Army health clinic documented a treatment visit one day after the Veteran had sought treatment at an emergency room after suffering respiratory problems. The provider explained that the Veteran developed dyspnea during a workout because she failed to pretreat with her inhaler. The provider noted that the possible asthma problem was unfounded, as the Veteran was just very excited and nervous but was breathing fine. In a March 2013 Statement in Support of Claim, the Veteran described her respiratory problems. According to the Veteran, “In June of 2010, I began having difficulties breathing.” She reported that she was referred for asthma testing and was diagnosed with exercise induced asthma. The Veteran reported that her condition had gotten worse and that “[n]ow if I go up a flight of stairs, I have difficulty breathing and I get light headed.” In September 2016, the Veteran submitted a Form 9 in which she reported that her asthma symptoms had worsened. According to the Veteran, after she was diagnosed with exercise induced asthma, she was deployed to Kuwait from July 2013 to September 2014. The Veteran reported the following: “While in Kuwait, I encountered dust storms and fuel burning. Now when I walk up one flight of stairs I get out of breath and am tired. If I smell strong scents, such as perfume, I get intense headaches and it is hard for me to breathe.” In October 2016, the Veteran was afforded a VA examination for her respiratory conditions. The examiner reported that the date of onset of her respiratory conditions was 2010 when the Veteran was diagnosed with exercise induced asthma. He reported that the Veteran never smoked and now has difficulty breathing when she smells perfume. Additionally, the Veteran reported that she must use her albuterol inhaler to ascend stairs. She also claimed she was exposed to environmental hazards when she was deployed in Iraq from 2006 to 2007. The Veteran reported using albuterol three times each week 30 minutes before she goes running. The examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the exposure to environmental hazards while stationed in Iraq from September 2006 to December 2007. As rationale, the examiner provided the following: “She started having exercise induced bronchospasms in 2010. The time span from 2006-2007 to 2010 is long and she has not had asthma right after her exposure to hazardous environment until 2010 when she was diagnosed.” Moreover, the examiner 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, event, or illness. He explained that her exercise induced bronchospasm was not aggravated beyond the natural progression due to her service in Kuwait from 2013 to 2014. The examiner noted that there was no treatment of asthma in her record. Furthermore, he stated that “I can assume that her exercise induced asthma is not progressively worse as she still uses albuterol inhaler 2 puffs 3 times a week before she goes out running.” Moreover, he reported that she had not used steroid inhalers or oral prednisone. As previously described, the Veteran’s service treatment records from the Veteran’s period of active service from June 2005 to August 2008 do not reflect any complaints, findings, or treatment for asthma. The first evidence of the Veteran’s respiratory problems was in June 2010, nearly two years after the Veteran’s discharge in August 2008. The Board acknowledges the Veteran’s contentions that her respiratory problems are related to service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that she seeks to establish a nexus between a current disability and service or onset in service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For this purpose, the Board finds the Veteran’s statements are not competent medical evidence. Consequently, the Board gives more probative weight to the October 2016 VA examination report. The examiner opined that the Veteran’s exercise induced bronchospasm was less likely than not (less than 50 percent probability) incurred in or caused by the exposure to environmental hazards while stationed in Iraq from September 2006 to December 2007, as there was a long period between her exposure in 2006 to 2007 and 2010, the year she started having exercise induced bronchospasms. Moreover, the examiner opined that the Veteran’s exercise induced bronchospasm, which clearly and unmistakably existed prior to her second period of active service, which began in July 2013, was clearly and unmistakable not aggravated beyond its natural progression by an in-service injury, event, or illness. Furthermore, the Veteran did not provide any medical evidence indicating a link between the Veteran’s exercise induced bronchospasm and service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for exercise induced bronchospasm. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for scoliosis with chronic, low, mid and upper back pain is remanded. 2. Entitlement to service connection for thoracic outlet syndrome is remanded. A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims can be reached. A July 2013 rating decision denied entitlement to service connection for scoliosis with chronic, low, mid and upper back pain as it was decided that evidence submitted in connection with the claim did not constitute new and material evidence. A July 2016 Statement of the Case reported that the Regional Office reopened and denied on the merits the claims of entitlement to service connection for scoliosis with chronic low, mid and upper back pain and denied entitlement to service connection for thoracic outlet syndrome. A March 2004 report of medical history documented the Veteran’s response that she had scoliosis but did not need a brace or surgery and that it was not a problem. In addition, she reported that she had never had any numbness or tingling. A June 2004 report of medical examination reported that the Veteran’s spine was normal. A January 2006 Pre-Deployment Health Assessment reported that the Veteran was in excellent health and had no medical problems. A November 2007 service treatment record reported that the Veteran was diagnosed with muscle tension of the left trapezius after she experienced minimal numbness and hands going cold. A January 2008 Post-Deployment Health Assessment reported that the Veteran experienced back pain during her deployment from September 2006 to December 2007. A January 2008 service treatment record reported that the Veteran was experiencing sharp pain in her upper back and across her shoulders and numbness in her hands. The Veteran reported that sharp pain began about two years ago and that weight on her shoulders aggravated the pain and numbness. A January 2008 chiropractic clinic note reported that the Veteran had back pain and hand numbness. She exhibited muscle spasms in her shoulder, cervical spine, thoracic spine, and lumbar spine. A March 2008 chiropractic clinic note reported that the Veteran had experienced lower back pain for “a day or so” due to very heavy lifting. She was diagnosed with scoliosis, muscle spasm, nonallopathic lesions lumbar, and neck strain. A May 2008 report of medical assessment reported that the Veteran was experiencing back and knee pain more often. The Veteran was discharged from her first period of active duty service on August 2, 2008. A June 2010 radiologic examination report indicated that the Veteran had been involved in two dirt bike crashes within the last two years without apparent head injury. A June 2010 Army outpatient note reported as past medical history that the Veteran had received closed head injuries as a result of dirt bike crashes in which she hit her helmeted head. In August 2010, the Veteran underwent private neurological testing. The examiner reported that she had a history of neck and bilateral shoulder pain with recurrent paresthesias down the arms and into the hands. The exam revealed no electrodiagnostic evidence of radiculopathy, plexopathy, or neuropathy. The examiner noted that “I suspect the patient does have some lower plexus irritation across the thoracic outlet related to her scoliosis and body habitus.” He recommended a trial of thoracic outlet exercises. In September 2016, the Veteran submitted a Form 9 on which she reported experiencing increased numbness in her hands and arms and that she had been diagnosed with thoracic outlet syndrome. She explained that wearing a backpack on her shoulders causes numbness and a loss of feeling in her arms that turns to pain if she continues to wear a backpack. In addition, she reported that sleeping on her side results in sharp stinging sensations in the hand on the side in which she is lying. In October 2016, the Veteran was afforded VA examinations of her thoracolumbar spine, cervical spine, and peripheral nerves. The peripheral nerves examination did not result in a diagnosis of a peripheral nerve condition as the testing found the Veteran’s peripheral nerves to be normal. The October 2016 examination report of the Veteran’s thoracolumbar spine reported diagnoses of trapezius strain and scoliosis. The examiner found no objective evidence of thoracic outlet syndrome. The examiner reported that the Veteran complained of tingling and numbness on both arms when she raises her arms above shoulder level. The Veteran reported an incident in which she had to “camelback water” over her shoulders on a ten-mile road march. At the end of the road march, she experienced numbness and swelling of both hands. She reported that she now has upper back pain at her trapezius muscles. She also reported flare ups where her back hurts worse on some days requiring her to stop running. The October 2016 examination report of the Veteran’s cervical spine reported a diagnosis of trapezius strain. The examiner reported that the Veteran has pain at her right trapezius and reportedly has thoracic outlet syndrome, with an unknown date of onset. She also has pain at her right sternocleidomastoid when palpated or when she turns her neck to the right. The examiner reported that the Veteran has flare ups in which her neck pain is worse on some days. During the October 2016 examinations of the Veteran’s thoracolumbar spine and cervical spine, the examiner reported that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups or repeated use over time. As rationale, the examiner explained that the examination was not conducted during a flare up or after repeated use over time. The examiner who conducted the October 2016 examinations opined that the claimed scoliosis with chronic low, mild and upper back pain, which clearly and unmistakably existed prior to service, was less likely than not aggravated beyond its natural progression by an in-service illness, event, or injury. The examiner provided the following rationale: “While in service she has to do a lot of physical training and road march and ruck march which could aggravate above conditions, however, there is nothing in records that supported increased symptoms or treatment or any worsening of the condition beyond its natural progression.” The Board finds that the October 2016 medical opinion is inadequate for the following reasons. The Veteran’s pre-service medical examinations did not report any symptoms or medical problems associated with her scoliosis. Moreover, the Veteran’s 2006 pre-deployment assessment reported that she was in excellent health and had no medical problems. However, during and after the Veteran’s deployment, she has exhibited back and shoulder pain and numbness in her hands and arms. In addition to scoliosis, the Veteran has been diagnosed with muscle spasm, muscle tension, neck strain, and nonallopathic lesions lumbar. The examiner explained that the physical demands of the Veteran’s military service could aggravate her scoliosis, but that there was nothing in the records that supported increased symptoms or treatment or any worsening of the condition beyond its natural progression. However, the examiner did not explain what symptoms are associated with the natural progression of scoliosis. Because service medical records showed a worsening of the Veteran’s condition, without this explanation, the Board finds that the examiner’s rationale is deficient. Prior to her military service, the evidence of record reflects that the Veteran’s scoliosis produced no symptoms and required no treatment. However, after being subjected to the rigors of military service, the record shows numerous reports of the Veteran experiencing back pain and numbness in her hands. If the natural progression of the Veteran’s scoliosis would have caused the symptoms exhibited by the Veteran even if she had not been subjected to the rigors of military service, a clear rationale with such an explanation must be provided. The Board also finds the October 2016 VA examinations of the Veteran’s thoracolumbar spine and cervical spine to be inadequate. During both examinations, the examiner failed to opine on whether the Veteran experiences likely functional loss with repeated use over time or during flare ups. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinion during the October 2016 examinations. Thus, the October 2016 VA examinations of the Veteran’s thoracolumbar spine and cervical spine were not adequate. In consideration of the inadequacies of the October 2016 examinations and medical opinion described above, the Board finds that remand is warranted for a new VA examination to ascertain the etiology and current severity and manifestations of the Veteran’s back and neck conditions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion addressing the questions presented below from the VA examiner who conducted the October 2016 examinations or another appropriate medical professional if the examiner is unavailable. If the reviewer determines that additional examinations of the Veteran are necessary to elicit information to provide a reliable opinion, such examinations should be scheduled. The electronic claims file must be made accessible to, and be reviewed by, the examiner, and the report should note that review. An explanation for all opinions expressed must be provided. (a) The examiner must opine as to whether it as at least as likely as not (50 percent or more probability) that the Veteran’s back condition, claimed as chronic low back pain, chronic mid/upper back pain, scoliosis, and thoracic outlet syndrome, had its onset in, or is otherwise related to military service. (b) If the examiner determines that Veteran’s back condition, claimed as chronic low back pain, chronic mid/upper back pain, scoliosis, and thoracic outlet syndrome, existed prior to service, the examiner must opine as to whether it as at least as likely as not (50 percent or more probability) that the Veteran’s back condition was aggravated beyond its natural progression by an in-service injury, event, or disease. (c) To the best of their ability, the examiner should provide a retrospective medical opinion regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability of both the Veteran’s thoracolumbar spine and cervical spine with repeated use over time or during flare ups throughout the pendency of the appeal. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Once the above-requested development has been completed, the claim must be readjudicated. If any determination remains unfavorable to the Veteran, she and her representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, and be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further consideration, if otherwise in order. 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 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. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel