Citation Nr: 1807190 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-28 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine (lumbar spine disability). 2. Entitlement to service connection for asthma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1978 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Outstanding Federal Records The Veteran has indicated, and the record reflects, that she receives treatment at VA medical facilities. On review, however, the most recent VA medical records associated with the claims file date from May 2014. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2) (2012). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Here, as the missing records are potentially relevant to the claims on appeal, the Board finds that a remand is required in order to obtain them. See 38 U.S.C. § 5103A; Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Furthermore, the Board notes that the Veteran has been awarded disability benefits through the Social Security Administration (SSA). See Notice of Award (received by VA in June 2008). VA has made no attempts to obtain the underlying medical records upon which that determination was based. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (VA has an obligation to secure SSA records if there is a reasonable possibility that the records would help to substantiate the Veteran's claims). On remand, these records should be obtained. Increased Rating for Lumbar Spine Disability The Veteran contends that she is entitled to an initial disability rating in excess of 10 percent for her lumbar spine disability, to include as a result of incapacitating episodes of back pain. See Board Hearing Transcript, p. 8 (July 2017); Disability Benefits Questionnaire, p. 2 (August 2017). On review, the Board finds that an updated VA examination is warranted. The Veteran was last provided with a comprehensive VA examination in connection with her lumbar spine disability in October 2010. Since that time, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. On review, the October 2010 VA examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion for the lumbar spine. It also do not specify whether the results are weight-bearing or nonweight-bearing. (An August 2017 Disability Benefits Questionnaire submitted by the Veteran does not include range of motion findings.) Thus, under Correia and 38 C.F.R. § 4.59, a new examination is necessary. Additionally, the Board notes that under Sharp v. Shulkin, 29 Vet. App. 26 (2017), when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this case, the Veteran testified during her Board hearing that she regularly has incapacitating episodes of back pain, and the subsequent August 2017 Disability Benefits Questionnaire reflects reports of "total incapacitation" during flare-ups. On remand, the examiner should provide an assessment of the nature and frequency of any incapacitating episodes, as well as estimates regarding the specific loss of range of motion during such episodes. On examination, any neurological abnormalities secondary to the Veteran's lumbar spine disability should also be assessed. If indicated, the appropriate evaluations should be assigned by the AOJ. See 38 C.F.R. § 4.71(a), General Rating Formula for Disease and Injuries of the Spine, Note (1) (directing VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate diagnostic code). Service Connection for Asthma The Veteran contends that she developed asthma in service, or, alternatively, that her preexisting asthma was aggravated by her service. On review, the Board finds that a remand is necessary for an addendum opinion so that the proper standard regarding the presumption of soundness can be addressed. Unless there is clear and unmistakable evidence to the contrary, VA must presume that a veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of his or her entrance into service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304. The presumption of soundness provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not detected. Where a report of service entrance examination is not of record, the Board must accord the veteran the presumption of soundness at service entry, absent clear and unmistakable evidence to the contrary. As an initial matter, the AOJ appears to have determined that the Veteran's asthma preexisted service based on her reports of symptomatology prior to service. See, e.g., Allergy Questionnaire (June 1991) (noting the Veteran's report of a 31-year history of asthma); Irwin Army Community Hospital Patient Report (May 1989) (noting the Veteran's reported history of "asthma all her life"). However, the record contains no evidence that an entrance examination was performed. Given the lack of an entrance examination report noting preexisting asthma, the presumption of soundness is for application. See 38 C.F.R. § 3.304(b). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See id.; VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). To that end, the Board finds that the evidence of record is inadequate to decide the claim. In October 2010, the Veteran underwent a VA examination during which she reported that she first experienced an asthma attack during Basic Training. After reviewing the claims file, the examiner opined that evidence reflected chronic problems during military service; however, the record also indicated that the Veteran "has had asthma since infancy, was hospitalized a lot as a child, can remember being in the hospital as a child for asthma." The examiner concluded that the Veteran's lifelong asthma was "severe as a child" as evidenced by very early onset, repeated therapy, and hospitalizations. In light of this, the examiner opined that "there is no evidence of aggravation during her active military service and that the asthma preceded her induction into the military." The Veteran subsequently contested the VA examiner's characterization of her medical history. During her Board hearing, she testified that she did not have asthma as a child, and that her first attack occurred in Basic Training. In September 2017, her mother submitted a statement indicating that the Veteran was never hospitalized for asthma symptoms. The Board further notes that during a November 2006 Aid and Attendance or Housebound examination, the Veteran reported, consistent with her Board testimony and her relation of events during the October 2010 VA examination, that she was diagnosed with asthma in Basic Training. In light of the above, the Board finds that a clarifying opinion is needed. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). In particular, additional explanation is required as to whether the Veteran's asthma clearly and unmistakable preceded her service. In formulating this opinion, the Veteran's lay statements should be addressed (both in support of and against her assertion that her asthma did not preexist service), as should her mother's statement indicating that the Veteran was never hospitalized as a child for asthma symptoms. If it is found that the Veteran's asthma clearly and unmistakably preceded service, an additional opinion is required as to whether her asthma was clearly and unmistakable not aggravated during service. Once again, the examiner should specifically consider the Veteran's lay reports of in-service symptoms as well as the numerous notations in her service treatment records of asthma attacks and treatment. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from May 2014 to the present. 2. Obtain outstanding Social Security Administration records pertaining to the Veteran. 3. Schedule the Veteran for a VA examination to ascertain the severity of her service-connected lumbar spine disability. The examiner should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary (including range of motion testing, which would include pain on both active and passive motion and in weight-bearing and nonweight-bearing), the examiner should fully describe all symptomatology and functional deficits associated with this condition. The examiner is specifically asked to address the following: * Whether the Veteran has incapacitating episodes of lumbar spine pain and, if she does, the frequency and duration of such episodes. The examiner should specifically discuss the Veteran's lay reports of incapacitating episodes as well as the August 2017 Disability Benefits Questionnaire noting "total incapacitating" during flare-ups. * Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should elicit from the Veteran, if possible, the flares' severity, frequency, duration, or functional loss manifestations. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. * The extent of any functional loss due to weakened movement, excess fatigability, incoordination, pain on use, swelling, deformity, or atrophy of disuse. * Any associated neurological impairment, to include nerve impairment in the lower extremities. 4. Then, forward the claims file to the appropriate specialist for an addendum regarding the Veteran's claim for asthma. If the specialist indicates that an additional examination should be performed, one should be scheduled. After reviewing the entire claims file, the examiner should opine as to the following: (a) Is there clear and unmistakable (obvious and manifest) evidence demonstrating that the Veteran's asthma existed prior to her entry into active duty? (b) If the answer to (a) is "Yes," is there clear and unmistakable (obvious and manifest) evidence demonstrating that the Veteran's asthma was not aggravated (i.e., the underlying disability was not increased in severity) beyond its normal progression during her period of active duty? In formulating the requested opinions, the examiner is asked to address in detail the Veteran's lay contentions regarding the etiology of her asthma (both in support of and against her assertion that her asthma did not preexist service), as well as the Veteran's mother's statement that the Veteran was never hospitalized for asthma symptoms prior to entering active duty. The examiner should also address the in-service notations of treatment for asthma/reactive airway disease flare-ups, including those noting the Veteran's reports that she had asthma all her life. See, e.g., Allergy Questionnaire (June 1991) (noting the Veteran's report of a 31-year history of asthma); Irwin Army Community Hospital Patient Report (May 1989) (noting the Veteran's reported history of "asthma all her life"). 5. After completing all indicated development, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. 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. §§ 5109B, 7112 (2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).