Citation Nr: 19157158 Decision Date: 07/23/19 Archive Date: 07/23/19 DOCKET NO. 18-41 397 DATE: July 23, 2019 REMANDED The issue of entitlement to service connection for a respiratory condition is remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from January 2009 to October 2016 and was awarded the National Defense Service Medal and Global War on Terrorism Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran filed an April 2018 notice of disagreement in response to the March 2018 rating decision, new and material evidence was received within one year of the May 2017 rating decision denying service connection for allergic rhinitis (claimed as a respiratory condition); accordingly, this decision is not final and is the appropriate decision on appeal with regard to the claim for service connection for a respiratory condition. Entitlement to service connection for a respiratory condition is remanded. The Veteran contends service connection for a respiratory condition is warranted as a result of being exposed to burn pits during her deployments to Djibouti. She states that she had a difficult time breathing and was prescribed an inhaler. She also had a productive cough for a long time and although she was evaluated, she never received a diagnosis. The Veteran served in Djibouti and her exposure to environmental hazards from burn pits there has been established. See VA Training Letter 10-03. For the purposes of service connection based upon service in the Persian Gulf War, Southwest Asia refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(e). Djibouti is located on the Gulf of Aden, which qualifies as service in Southwest Asia. Service connection may be granted on a presumptive basis for a veteran who served in Southwest Asia and who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The Veteran was afforded a VA respiratory condition examination in March 2017. The examiner determined that there was no objective evidence for the diagnosis of a respiratory condition requiring an inhaler. In March 2018, the Veteran was afforded another VA examination and a medical opinion was obtained. The clinician opined that the Veteran has a chronic multisymptom illness with a partially explained etiology and it was less likely than not related to service. The clinician explained that the Veteran did not have a diagnosis of asthma or other chronic respiratory condition. She stated that the albuterol inhaler was prescribed to address breathing issues, including shortness of breath, and was an addition to the Veteran’s treatment for an upper respiratory infection. There was no documentation of asthma at the time and the Veteran’s upper respiratory infection was acute and had resolved. The clinician further reasoned that there was no evidence of ongoing evaluation or treatment for a chronic respiratory condition in the reviewed documentation. In an August 2018 addendum opinion that same month, the March 2018 clinician reiterated that the Veteran did not have diagnosis of asthma or other chronic respiratory condition. The Board finds that the examiner’s negative nexus opinion is internally inconsistent and relies solely on the lack of service treatment records. The absence of treatment records should not be the primary basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (noting that an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the veteran’s current disability and his military service (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992)). The examiner also failed to address evidence that the Veteran was exposed to an environmental hazard during service in Southwest Asia. The Veteran reported to the examiner that she was exposed to burn pits during her deployments to Djibouti. A VA training letter of April 2010 states that a veteran’s lay statement as to burn pit exposure generally will be sufficient to establish such exposure if the veteran served in Iraq, Afghanistan, or Djibouti. VA Training Letter 10-03 (April 26, 2010). Based on the foregoing deficiencies, an additional VA examination is necessary prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated her for a respiratory condition. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. 2. Additionally, obtain any outstanding VA treatment records. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s respiratory conditions, to include a possible qualifying disability under 38 C.F.R. § 3.317 for a Persian Gulf War Veteran. The examination must be conducted by clinician familiar with Gulf War illness (other than the clinicians who conducted a March 2017 and March 2018 VA examinations). The entire claims file must be reviewed in conjunction with the examination. In this regard, the VA examiner must be provided with the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti” and address this information in the opinion provided. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner is asked to address each of the following: (a.) Provide a current diagnosis for the Veteran’s respiratory condition. (b.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (c.) Is the Veteran’s disability pattern (a respiratory condition) consistent with: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (3) a diagnosable chronic multisymptom illness with a partially explained etiology; or (4) a disease with a clear and specific diagnosis and etiology. (d.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia, including exposures to fumes from burning oil fields, munitions dumps, and/or latrine waste. (e.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. 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. The case should then be returned to the Board for further appellate consideration, if in order. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.