Citation Nr: 1808174 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-24 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a chest condition characterized as intercostal muscle spasm. 2. Entitlement to service connection for pinched nerve in the left arm. 3. Entitlement to service connection for a back disorder. 4. Entitlement to service connection for a pulmonary condition characterized as asthma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran served in the United States Army and the Virgin Islands National Guard with periods of service from at least April 1977 to February 1985, and active duty from August 1980 to February 1985. The Veteran also had periods of active duty for training (ACDUTRA) from April 1977 to July 1977 and inactive duty training (INACDUTRA) at various times. The Veteran received multiple awards and medals including the Army Achievement Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The case was previously before the Board in July 2016, at which time, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a personal hearing before the Board via videoconference in accordance with his request. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing has been associated with the claims file. The Board has recharacterized the Veteran's claim for asthma more broadly to a pulmonary condition in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). At the Veteran's hearing, he indicated that when he filed his claim for a back disability, he also intended that claim to encompass his neck disability. Thus, the Veteran has raised the issue of service connection for a neck (cervical spine) disability, which has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Such matter is referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND I. Verification of Periods of Service The Board notes that a December 2012 statement from the Veteran indicates that he served in the Virgin Islands National Guard from 1977 to 1980, and a January 2009 military personnel record indicates the Veteran had periods of active duty for training (ACDUTRA) from April 1977 to July 1977. Further, the Veteran testified during a September 2016 Board hearing that he was treated for a pulmonary condition during service in approximately 1976 to 1977. It does not appear that all of the Veteran's periods of service have been verified and that all of the Veteran's service treatment records have been obtained. On remand, the AOJ should obtain verification of the Veteran's dates of service in the United States Army and the Virgin Islands National Guard, including dates of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA), and should obtain all of the Veteran's service treatment records. II. Back Disorder The Veteran asserts that his back disorder is related to service. At a September 2016 Board hearing, the Veteran testified that he injured his back while playing softball in service. He testified that he received treatment for his back following the injury, including x-rays and medication to treat his back pain. The Veteran testified that he has had a back condition since service, and that following service, the Veteran treated his back condition with medication, and began treatment with a private treatment provider in 1989. The Board notes that a December 2012 statement from the Veteran indicates that he served in the Virgin Islands National Guard from 1977 to 1980, and a January 2009 military personnel record indicates the Veteran had periods of active duty for training (ACDUTRA) from April 1977 to July 1977. A February 1982 service treatment record reflects a diagnosis of intercostal muscle spasm. A January 1985 Report of Medical History for Chapter 16 separation reflects that Veteran reported that he had recurrent low back pain without neuropathy. The Veteran was afforded a VA examination in March 2013, which reflected a diagnosis of strain of the thoracolumbar spine (back). The Veteran reported gradual onset of back pain over course of duty due to long field marches carrying heavy backpacks; he was treated with medications in service and had had back pain ever since. The examiner opined that the Veteran's back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that although the service treatment records reflect that the Veteran acknowledged recurrent back pain on discharge in January 1985, there were no other notes during the prior eight years of service, however, which showed any complaints or injuries to the back during service. The examiner noted that there was no objective evidence for any chronic back condition present during service. The Board finds that the examiner did not offer a sufficient etiological opinion as to whether the Veteran's back condition was related to the Veteran's engagement in long field marches carrying heavy backpacks nor did the examiner adequately address the Veteran's report of continuous back pain since service apparently relying on the lack of objective evidence for any chronic back condition present during service without comment regarding the competent non-medical evidence, which renders the opinion inadequate. The Board finds that a VA examination of the Veteran's back (thoracolumbar spine) is warranted to determine the etiology of this disorder, to include during any qualifying period of ACDUTRA or INACDUTRA. III. Records and Intertwined Claims At the Veteran's hearing, he indicated that although there was no current diagnosis of a chest condition, he had some upcoming tests for further evaluation of that condition. These records should be obtained on remand. The Veteran also provided testimony that he was told that his left arm nerve disorder was caused by his back disorder. As it is unclear whether there is an etiological relationship between the Veteran's claim for service connection for a pinched nerve in the left arm and his back claim, the Board finds that such claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, action on the claims for service connection for chest pain (residuals of intercostal muscle spasm) and pinched nerve in the left arm is deferred pending additional development. IV. Pulmonary Condition The Veteran asserts that his pulmonary condition is related to service. At a September 2016 Board hearing, the Veteran testified that exposure to 2-chlorobenzylidene malononitrile (CS gas or tear gas) caused his pulmonary condition. The Veteran testified that during service he went into a gas chamber, and was exposed to CS gas, which caused him to gasp for air and vomit. Following the incident, the Veteran was injected with a shot to open up his lungs. The Veteran testified that he was treated for a pulmonary condition twice in service; the first time was during basic training in approximately 1976 to 1977. The Veteran was also treated for a pulmonary condition in approximately 1983 to 1984 following a training exercise, when the Veteran had shortness of breath and tightness in his chest. The Veteran testified that he was diagnosed with asthma in service. Following service, the Veteran began receiving treatment for his pulmonary condition with VA in 1990, and was prescribed medication to treat his pulmonary condition. Post-service private treatment records reflect a history of pulmonary disease, including asthma with use of inhaler from January 2008, and a diagnosis of asthma from April 2008. A January 2013 VA treatment record reflects that the Veteran reported that he had been on and off steroids for his asthma since the 1990s. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The requirement that the evidence "indicates" that the Veteran's disability "may" be associated with his service is a low threshold. Id. Thus, in light of the Veteran's contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran's pulmonary condition, to include whether the Veteran's pulmonary condition is related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon, supra. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain the Veteran's complete service personnel records from his active duty service in the United States Army, and his service as a member of the Virgin Islands National Guard, to determine the specific dates of active duty, ACDUTRA and INACDUTRA. The AOJ should prepare a summary/memorandum based on verified information from appropriate official sources of the specific dates of active duty, ACDUTRA and INACDUTRA for the Veteran in the United States Army and Virgin Islands National Guard. Records concerning service merely denoting the amounts of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on active duty, ACDUTRA and INACDUTRA. 2. Obtain all outstanding VA and private medical records pertaining to the issues on appeal (back, left arm, chest and lung disabilities) and associate such records with the record on appeal. Document all efforts to obtain such records. 3. Schedule the Veteran for a VA examination of the thoracolumbar spine to ascertain the nature and etiology of the Veteran's back condition to include whether the Veteran has an associated left arm neurological disorder. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether it is at least as likely as not (50 percent or greater likelihood) that any current back (thoracolumbar spine) condition manifested during service, that arthritis was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to, or aggravated by, a period of active duty service and/or ACDUTRA. b. whether it is at least as likely as not (a 50 percent or greater probability) that such any current back condition is due to or aggravated by an injury during a period of INACDUTRA. c. whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a left arm neurological disorder that is proximately due to, or alternatively, aggravated by (permanently worsened beyond the natural progress of such disorder) by a diagnosed back (thoracolumbar spine) disorder. The examiner should consider and discuss the following: i. the Veteran's testimony that he injured his back playing softball in service; ii. the significance, if any, of the February 1982 service treatment record, which reflects a diagnosis of intercostal muscle spasm; iii. the January 1985 Report of Medical History for Chapter 16 separation, which reflects that the Veteran reported that he had recurrent low back pain without neuropathy. iv. the Veteran's reported complaints and treatment of a back condition since service. In rendering the opinion, the examiner should consider the Veteran's testimony that he injured his back playing softball in service, and that he has had continuous back pain and treatment since service to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's pulmonary condition. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current pulmonary condition manifested during, is otherwise causally or etiologically related to, or aggravated by, a period of active duty service and/or ACDUTRA. The examiner should consider and discuss the following: i. the Veteran's testimony that he had trouble breathing following exposure to a gas in service and was treated with an injection to open his airways; ii. the Veteran's testimony that he had trouble breathing following a training exercise and was treated with an injection to open his airways; iii. the Veteran's reported complaints and treatment of a pulmonary condition since service; In rendering the opinion, the examiner should consider the Veteran's statements regarding having trouble breathing after being exposed to a gas, and having trouble breathing following a training exercise and treatment with an injection to open his airways to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Readjudicate the issues on appeal in light of all of the evidence of record. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period within which to respond thereto. 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. §§ 5109B, 7112. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).