Citation Nr: 1808164 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-19 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected plantar fasciitis. 2. Entitlement to service connection for a respiratory disorder, to include sinusitis, allergic rhinitis, or benign pulmonary nodules. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from December 1990 to August 1997. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. By that rating action, the RO denied service connection for low back and respiratory disabilities, to include as secondary to the service-connected plantar fasciitis (low back). The Veteran appealed these determinations to the Board. In January 2015, the Veteran testified before the undersigned at a videoconfernce hearing. A copy of the hearing transcript has been associated with the electronic record. In June 2015, the Board remanded the Veteran's appeal to the RO for additional development. The requested development has been accomplished and the issues have returned to the Board for further appellate consideration. In addition, the Board notes that after the RO issued a November 2015 Supplemental Statement of the Case (SSOC), wherein it adjudicated the issues on appeal, additional VA treatment and vocational rehabilitation records were associated with the electronic record in April 2016 and December 2017, respectively. In an April 2016 statement to VA, the Veteran's representative waived initial RO consideration of the VA treatment records. (See Veteran's representative statement to VA). As the VA vocational rehabilitation records do not contain evidence discussing the etiology of the Veteran's low back and respiratory disabilities, they are not pertinent to the issues on appeal. Thus, a remand to have the RO issue an SSOC addressing the VA vocational rehabilitation records is not required. See 38 C.F.R. § 20.1304 (2017). A remand is required, however, for reasons that are discussed below. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is necessary prior to further appellate review of the claims. Notably, to obtain an addendum opinion on the claim for service connection for a respiratory disability; to obtain outstanding private treatment records from the Veteran's treating podiatrist; and, to obtain a copy of a June 2013 medical opinion, prepared by Carolina Musculoskeletal Institute and the Center for Primary Care, referenced by the Board in its June 2015 remand. The Board will discuss each reason for remand below. Respiratory Disorder In September 2015, VA examined the Veteran to determine the etiology of her respiratory disability. After a review of the relevant records, the VA examiner noted a diagnosis of reactive air way disease in 1991 and benign pulmonary nodules. The examiner opined that asthma was not related to service, due to a lack of evidence for a diagnosis of asthma before, during, or after military service. The examiner noted several STRs disclosing that the Veteran had received treatment for routine upper respiratory infections (URIs), episodes of "allergic rhinitis" or sinusitis, as well as an acute respiratory event with wheezing in mid-January 1991. The VA examiner noted that pulmonary function testing, performed in August 2012 and September 2015, had also failed to show any compromised pulmonary status or improvement with broncho-dilator therapy. Therefore, according to the September 2015 examiner, there was no evidence of any demonstrated respiratory compromise other than an isolated event of an acute bronchial infection in January 1991. As to the separate diagnosis of pulmonary nodules, which had been previously been addressed by a VA physician in 2012, the September 2015 VA examiner opined that there was no evidence that the small pulmonary nodules noted on a computed tomography (CT) scan in 2007 were service-related as the Veteran had reports of "normal chest x-rays" while in military service and the small benign nodules only appeared after service separation. Therefore, the September 2015 VA examiner concluded that because the Veteran's pulmonary nodules had remained unchanged over a period of three years, were benign, were of no clinical significance, produced no respiratory disability or compromise, and required no further follow-up, they were not service-connected. The Board finds the VA examiner's September 2015 opinion inadequate. First, the examiner focused solely on asthma and benign pulmonary nodules, without indicating if these were the only disorders diagnosed. This is notable as the Veteran has alleged asthma, sinusitis, bronchitis, allergic rhinitis, and nodules. Second, the Veteran's service treatment records indicate pre-existing respiratory disability. A review of the January 1991 STR contains an entry that the Veteran's bronchitis with post exertional dyspnea/wheezing had existed prior to service (EPTS). Thus, while a June 1989 service enlistment examination report reflects that the Veteran's chest and lungs were evaluated as "normal" and a respiratory disability was not found at that time, the June 1991 report suggests that the Veteran had a preexisting respiratory disability, namely bronchitis prior to service entrance in December 1990. Thus, the Board finds that a remand for an addendum opinion that addresses the preexisting component of the claim for service connection for a respiratory disability is necessary prior to further appellate consideration of the claim. Low Back Disorder A remand is required to obtain private treatment records. During a September 2015 spine examination, the Veteran reported that she had continued to seek treatment for her feet from her treating podiatrist, Dr. MS. As the Veteran has maintained, in part, that her service-connected low back disorder is secondary to her service-connected plantar fasciitis, the outstanding private treatment records from Dr. MS might contain potentially relevant evidence between her service-connected foot disability and low back. Thus, a remand is needed to attempt to obtain the Veteran's private treatment records. Missing June 2013 Private Treatment Record In its June 2015 remand, the Board referenced a June 2013 opinion, prepared by Carolina Musculoskeletal Institute and the Center for Primary Care that is supportive of the claim for service connection for a low back disability. (See June 2015 Board remand at pg. 5). The June 2013 report, however, is not located in the Veteran's Veterans Benefits Management System (VBMS) or Legacy Content Manager Document (LCMD) electronic records. Thus, on remand, the RO should obtain a copy of the above-referenced missing document and upload it to the Veteran's VBMS electronic record. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who provided treatment for her respiratory and low back disorder, notably Dr. MS. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 2. Obtain a copy of the June 2013 opinion, prepared by Carolina Musculoskeletal Institute and the Center for Primary Care, referenced in the Board's June 2015 remand and upload it to the claims file. If a copy of this document cannot be obtained, associate a memorandum with the file documenting the steps which it took to obtain the above-cited document. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran's respiratory disorder from the September 2015 VA examiner or another similarly qualified medical practitioner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide a determination of all respiratory disorders, to include whether there is asthma, reactive airway disease, sinusitis, allergic rhinitis, bronchitis, or benign pulmonary nodules. Second, the examiner must provide the following opinions: (1) is there clear and unmistakable (obvious, manifest, and undebatable) evidence that each diagnosed respiratory disorders, notably bronchitis, preexisted the Veteran's entrance into military service in December 1990; and (2) if so, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that the preexisting respiratory disorder was NOT aggravated during service? Third, for each diagnosed disorder that did not preexist service, is it at least as likely as not that the disorder had onset in, or is otherwise related to, active service? The examiner must address and reconcile the following evidence of record: (i) June 1989 service enlistment examination report reflecting that the Veteran's chest and lungs were found to have been "normal" at enlistment; (ii) the Veteran's denial of shortness of breath and asthma on a June 1989 Report of Medical History; (iii) January 1991service treatment record disclosing that the Veteran's bronchitis with post-exertional dyspnea/wheezing had existed prior to service; (iv) in-service treatment for URIs, allergic rhinitis and sinusitis; (v) August 1997 Report of Medical Assessment wherein the Veteran did not disclose having had respiratory problems during service; (vi) the 2015 VA examination report. 4. Review the addendum opinion to ensure that it is complete compliance with the directives of this remand. If any opinion and/or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).