Citation Nr: 1817802 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-31 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for a left foot condition. 3. Entitlement to service connection for a low back condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Reed, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1984 to March 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in September 2014. The Veteran subsequently testified at a Board hearing before the undersigned in July 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In her July 2015 Board hearing, the Veteran indicated that while she did not receive any treatment from VA healthcare providers, she did receive treatment for her claimed conditions from a number of other medical providers, including Baylor Garland Hospital in Garland, Texas in 1988, Augsburg Hospital in Augsburg, Germany as a military dependent beginning in August 1988, and currently from her primary care physician, Dr. J.O. in Richardson, Texas. The Veteran further indicated that the Augsburg Hospital subsequently closed, and their records were sent to Landstuhl Hospital. After a review of the claims file, it does not appear that the RO has requested any records from Baylor Garland Hospital or attempted to obtain the Augsburg Hospital records from Landstuhl Hospital. Additionally, the Board notes that the most recent private treatment records obtained from the Dr. J.O. are from August 2011. Thus, it appears there are outstanding medical treatment records, and the Board must remand in order for those records to be obtained. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b), (c). 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 the 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. 38 U.S.C. § 1111 (2012). With respect to the Veteran's claimed asthma disorder, the Veteran's enlistment report of medical history indicated the Veteran reported a history of asthma, but the Veteran's enlistment examination does not identify asthma or any other respiratory disorder at entry. Thus, asthma was not clinically noted in the Veteran's enlistment examination. Consequently, the presumption of soundness on entry attaches with respect to the Veteran's asthma. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Although there is some lay evidence suggesting a pre-existing asthma condition, the Board finds there is not enough to show by clear and unmistakable evidence that there was a pre-existing asthma disability at the time of her entry into military service. Further, in light of the documented episodes of shortness of breath and hyperventilation in the Veteran's service treatment records, the VA cannot meet the very high standard of also showing by clear and unmistakable evidence that any pre-existing asthma disability was not aggravated during service. Thus, the Board finds the presumption of soundness has attached and has not been rebutted. The May 2012 VA examiner based his asthma etiology opinion on the assumption that there was a pre-existing asthma disability. Accordingly, this opinion is based on an incorrect factual premise and a new medical opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With respect to the Veteran's claimed low back disability, the Veteran underwent a May 2012 VA examination where the examiner diagnosed the Veteran with lumbar myofascial syndrome. The examiner stated that the Veteran's service treatment records documented a single episode of low back pain while in service in February 1987, but opined that the Veteran's low back disability was less likely than not related to that incident in service. However, the Veteran's service treatment records also document in-service complaints of back pain in July 1986 in connection with a wrestling injury and treatment in connection with the removal of an epidermal nevus from the Veteran's mid thoracic back in June 1984. The examiner did not specifically address those records in the examination or opinion provided; accordingly, the May 2012 VA opinion for the Veteran's low back disability is inadequate for adjudication purposes. With respect to the Veteran's claimed left foot disability, the Veteran underwent a May 2012 VA examination in which the examiner diagnosed the Veteran with left foot plantar fasciitis. The examiner noted that the Veteran claims that she experienced left foot pain in service and noted that the Veteran was treated in service for left foot blisters, but ultimately opined that the Veteran's current left foot condition was less likely than not related to the Veteran's left foot blisters in service. However, the Veteran's service treatment records also document a September 1987 left ankle injury, in which the medical provider noted tenderness at the peroneal tendon and pain with plantar flexion; the examiner did not address those treatment records in the May 2012 examination or opinion. Furthermore, the examiner specifically stated that the Veteran's separation examination was negative for any complaints related to the Veteran's feet, but the Veteran's January 1988 separation exam specifically notes mild, non-rigid pes planus. A medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet.App. 4458, 460-61 (1993). Accordingly, the May 2012 VA opinion for the Veteran's left foot disability is also inadequate for adjudication purposes. Consequently, the Board finds that a remand is necessary in order to obtain new VA examinations and opinions which address the above deficiencies. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any treatment that she may have had for her low back, left foot, or asthma disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. 2. Then, arrange for a VA Examination by an examiner who has not previously participated in this case to address the nature and etiology of the Veteran's claimed foot disorder. The examiner is to identify any present foot disorder, to include plantar fasciitis and pes planus, and for any such distinct foot disorder found, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder began in or is otherwise related to the Veteran's military service. The examiner should specifically address the Veteran's documented in-service September 1987 left ankle injury and January 1988 separation examination noting mild, non-rigid pes planus. All opinions must be accompanied by an explanation. 3. Then, arrange for a VA Examination by an examiner who has not previously participated in this case to address the nature and etiology of the Veteran's claimed low back disorder. The examiner is to identify any present low back disorder, to include lumbar myofascial syndrome, and for any such distinct low back disorder found, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder began in or is otherwise related to the Veteran's military service. The examiner should specifically address the Veteran's documented in-service treatment for back pain in July 1986 and February 1987, and further address the June 1984 removal of an epidermal nevus from the Veteran's mid-thoracic back. All opinions must be accompanied by an explanation. 3. Then, arrange for a VA Examination by an examiner who has not previously participated in this case to address the nature and etiology of the Veteran's claimed asthma. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's asthma disorder was caused by or is etiologically related to any incident of active duty or manifested to a compensable degree within a year of discharge from active duty. The examiner is advised that because no asthma disability was clinically noted on the Veteran's entrance examination, the examiner must presume that the Veteran did not have a pre-existing asthma disability prior to military service, despite the history provided by the Veteran. The examiner must provide reasons for each opinion. 5. Then, the AOJ should review the claims file and readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). 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 (2012). _________________________________________________ M. HYLAND 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).