Citation Nr: 1808709 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 98-03 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for migraine headaches, to include as due to undiagnosed illness and/or service-connected disability. 2. Entitlement to service connection for asthma. 3. Entitlement to an initial compensable rating for service-connected allergic rhinitis. 4. Entitlement to an initial compensable rating for service-connected sinusitis. REPRESENTATION Veteran represented by: Virginia Girard-Brady, Attorney-at-Law ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to April 1987. He had service with the Michigan Army National Guard from April 1987 to April 1997, with a period of active duty from September 1990 to May 1991 (to include service in Southwest Asia during the Persian Gulf War from October 1990 to April 1991). This matter comes before the Board of Veterans' Appeals on appeal from February 2013, September 2016, and October 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) (Agency of Original Jurisdiction (AOJ)). In January 2016 and August 2017, the Board remanded this matter for further development. The Board notes that a claim for service connection for asthma was subject to a previously unappealed denial, in an October 1998 rating decision. However, at the time of the decision, the claims file did not include any records pertaining to the Veteran's second period of active service, from September 1990 to May 1991 and the RO only considered the Veteran to have been on active duty from August 1981 to April 1987. Subsequent to the October 1998 decision, additional service records, including the Veteran's DD-214 establishing his second period of service, have been added to the claims file and VA is now considering his claims in relation to both of his periods of active duty. Accordingly, de novo review of the previously denied claim is appropriate. See 38 C.F.R. § 3.156(c). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for migraines and asthma, and compensable ratings for his service-connected sinusitis and allergic rhinitis. As to his claim for service connection for migraines, the Veteran underwent VA examination in October 2016. The October 2016 VA examiner noted a diagnosis of migraines including migraine variants with a diagnosis date of 1992. The VA examiner opined that the Veteran's current migraine headaches are not related to the Veteran's second period of service. By way of rationale, the VA examiner merely stated that "there is no medical evidence to support the connection." The Veteran's attorney asserts that the October 2016 VA opinion is inadequate for failure to provide an adequate rationale, and requests a new VA examination. See September 2017 and November 2017 Veteran's Attorney Statements. In a June 2017 statement, the Veteran reported exposure to environmental hazards during service in the Persian Gulf. As the October 2016 VA examiner did not have the opportunity to address the Veteran's report regarding in-service exposure, an additional VA medical opinion is needed regarding whether the Veteran's migraines are related to his second period of service to include his reported exposure to environmental hazards. In addition, as the evidence of record shows that the Veteran's migraines had an onset in 1992, medical opinion regarding whether the Veteran's migraines manifested to a compensable degree within a year of separation from service should be obtained on remand. See M21-1, Part III, Subpart iv, Section N, 1, d. (migraine headaches are considered organic diseases of the nervous system under 38 C.F.R. § 3.309(a)). As to his claim for service connection for asthma, the Veteran has a current diagnosis of bronchial asthma. See November 2017 VA Treatment Record. The Veteran reports that his asthma began during his second period of service in 1991 or that it is due to environmental hazards from service during the Persian Gulf War. See January 2018 Substantive Appeal; June 2017 Veteran's Statement. The Veteran's VA treatment records note a history of asthma in 1991. See, e.g., January 2005 VA Treatment Record. The Veteran underwent VA examination in July 2010. The July 2010 VA examiner opined that the Veteran's asthma was less likely than not related to the Veteran's Persian Gulf War service. The VA examiner explained that the Veteran had asthma which could have been aggravated by his known allergies. The VA examiner noted that there was no documentation of asthma symptoms during the Veteran's Persian Gulf service. However, the July 2010 VA examiner did not have the benefit of the Veteran's statements regarding in-service exposure to environmental hazards. The Board also notes that while the Veteran's service treatment records from his second period of service are not available, the Veteran reported that he was treated for allergies during this period. See March 1995 Veteran's Statement. In addition, the July 2010 VA examiner did not opine as to whether the Veteran's asthma is related to his first period of service, during which time notations were made concerning allergies and the Veteran was treated for upper respiratory infections. See, e.g. August 1985 STR (noting recurring bronchitis) and February 1987 STR (noting Veteran's allergies during hay season). Accordingly, remand is appropriate to obtain additional VA medical opinion regarding whether the Veteran's asthma started in service or is related to either period of service (to include the Veteran's reported in-service exposure to environmental hazards while serving in the Persian Gulf War). As to his claims for compensable ratings for sinusitis and allergic rhinitis, the Veteran last underwent VA examination in July 2010. In the January 2018 substantive appeal, the Veteran reported that his disabilities have worsened since his last examination and that the evidence of record does not adequately show the current severity of his disabilities. The Veteran requested a new VA examination. In light of these reports of worsening, remand is appropriate for a new VA examination to address the current severity of the Veteran's sinusitis and allergic rhinitis. In a June 2017 statement, in relation to his claim for service connection for asthma, the Veteran reported that he was hospitalized for 6-7 days at an Air Force hospital in the Persian Gulf due to a virus and dehydration. Such records are not in the claims file. Accordingly, the RO should contact the Veteran to obtain additional information regarding his reported hospital visit and then, if the Veteran provides such additional information, attempt to obtain such records. While on remand, outstanding VA treatment records should be obtained, including records dated from November 2017 to the present. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request additional information regarding his reported hospital visit in the Persian Gulf as reported in his June 2017 statement. If the Veteran provides such additional information, make all appropriate attempts to obtain such records. 2. Obtain outstanding VA treatment records, including VA treatment records dated from November 2017 to the present. 3. After associating any outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine whether the Veteran's migraines manifested to a compensable degree within one year of separation from his second period of service or whether the migraines are otherwise related to such period of service. The examiner should review the Veteran's electronic claims file in conjunction with the examination. Any necessary tests should be conducted. The examiner should obtain a history from the Veteran regarding the onset of his migraines, whether the migraines were prostrating at the time, and the frequency of any prostrating attacks. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's migraines: (a) manifested to a compensable degree within one year of separation from service (i.e., May 1992); or (b) result from or were caused by any injury or disease that occurred during the Veteran's second period of service, to include exposure to environmental hazards during service in the Persian Gulf War. Manifesting to a compensable degree means migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. In so opining, the examiner should consider all pertinent medical and lay evidence. The examiner should set forth the complete rationale for all opinions. 4. After associating any outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine whether the Veteran's asthma had an onset in service or is otherwise related to either period of service. The examiner should review the Veteran's electronic claims file in conjunction with the examination. Any necessary tests should be conducted. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's asthma: (a) had an onset in service; (b) results from or was caused by any injury or disease that occurred during the Veteran's first period of service; or (c) results from or was caused by any injury or disease that occurred during the Veteran's second period of service, to include exposure to environmental hazards during service in the Persian Gulf War. In so opining, the examiner should consider all pertinent medical and lay evidence. The examiner should set forth the complete rationale for all opinions. 5. After associating any outstanding records with the claims file, afford the Veteran a VA examination to determine the current severity of his sinusitis and allergic rhinitis. The Veteran's file must be reviewed by the VA examiner. 6. Then, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ____________________________________________ V. Chiappetta 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).