Citation Nr: 21004711 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-09 685 DATE: January 27, 2021 REMANDED Entitlement to service connection for lower back degenerative disc disease (DDD) is remanded. Entitlement to service connection for residuals of head injury, to include vertigo, is remanded. Entitlement to service connection for a lung condition, also claimed as lung condition due to asbestos, is remanded. Entitlement to service connection for a heart condition, to include coronary artery disease (CAD), is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to November 1987, from August 1990 to September 1990, from February 1991 to July 1991, from October 2001 to September 2002, and from February 2003 to February 2004, with additional periods of reserve service. In August 2019, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing in San Antonio, Texas. In September 2019, this appeal was remanded for additional development. Following the September 2019 Board remand, service connection for hypertension was granted in an August 2020 rating decision. Accordingly, that issue is considered satisfied in full and is no longer before the Board. For the reasons outlined below, the Board finds that further development is needed. As an initial matter, the September 2019 Board remand instructed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding military records, to include those reflecting the Veteran’s service in the United States Air Force Reserve. Although the AOJ obtained records pertaining to the Veteran’s Reserve service, these records do not confirm all of his periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). On remand, efforts should be made to obtain complete copies of the Veteran’s personnel records, and verify all periods of service through the Veteran’s retirement in February 2012. Pursuant to the Board’s September 2019 remand, the AOJ requested that the Veteran assist VA in obtaining any private medical treatment records. It does not appear that the Veteran responded to that request. However, a review of the record shows that the Veteran has been receiving care from a private physician. As this claim is being remanded again, the Veteran will have another opportunity to assist in the development of his claim. He is reminded that in pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim; that is to say, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). If the Veteran wishes help in developing his claim, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining evidence. Id. 1. Entitlement to service connection for lower back DDD is remanded. The July 2020 VA examiner opined that the Veteran’s low back condition was less likely related to service based on the available evidence being void of any evidence that the Veteran suffered a “significant fall while on active duty orders” and because there are “no records showing any significant continuity of care or signs of ominous pathology.” According to the examiner, although records show that the Veteran did fall, they show that he just complained of stomach pain. The Board finds this opinion inadequate as it relies on the absence of treatment records without consideration of the Veteran’s competent reports. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service treatment records (STRs) to provide a negative opinion). 2. Entitlement to service connection for residuals of head injury, to include vertigo, is remanded. The April 2020 VA examiner opined that there was no current TBI diagnosis. Following the Veteran’s fall from a ladder in 2003, he had a mild TBI that “has resolved now. Mild TBIs normally resolve in weeks to months.” The Board finds this examination inadequate as it does not specifically address the Veteran’s reports or diagnosis of vertigo (or his complaints that he had vertigo since his fall in service). 3. Entitlement to service connection for a lung condition, also claimed as lung condition due to asbestos, is remanded. A July 2020 VA examiner stated that the Veteran’s records “support a history of breathing complaints and/or condition in or around 2013”; however, there is no indication that the Veteran experienced any chronic or persistent breathing complications from his “reported sentinel event that occurred in 2007.” Although he reported having symptoms since that date, the records show that his vitals stabilized after an initial problem with shortness of breath and/or chest pain associated with this event. The examiner also stated that the Veteran was a federal employee at the time this incident occurred and was not on a period of active duty. Ultimately, he opined that there is no connection with this event, or any other event in active duty, and any of his intermittent upper respiratory infections or bouts with breathing difficulty that started later in life. The Board finds this examination inadequate as it fails to consider the diagnoses of upper respiratory infection and bronchitis or complaints of shortness of breath documented in his STRs. See February 1991, March 2005, May 2005, and June 2008 STRs. 4. Entitlement to service connection for a heart condition, to include CAD, is remanded. The April 2020 VA examiner opined that the Veteran’s heart condition was less likely related to service since there was “no clear evidence of a CAD diagnosis in the service.” The Board finds this opinion inadequate because an examiner cannot provide a negative nexus opinion based solely on the absence of such records. Additionally, in a confusing fashion, the examiner also opined that the Veteran’s heart condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness since “[n]o aggravation or diagnosis is noted in the [service treatment records].” No rationale was provided for this opinion. As mentioned above, service connection for hypertension was granted in an August 2020 rating decision. The Veteran’s representative has argued that the Veteran’s now service-connected hypertension either caused or aggravated his heart condition. Accordingly, an opinion addressing this theory of entitlement is necessary. The matters are REMANDED for the following actions: 1. The AOJ should attempt to confirm the Veteran’s periods of active duty, ACDUTRA, and INACDUTRA with the Air Force Reserve. It is requested that exact dates of ACDUTRA and INACDUTRA periods during his reserve time be confirmed. It is noted that the Veteran’s service personnel records show that he retired from the Air Force Reserves in February 2012. 2. The AOJ should obtain records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If the records are unavailable, the reason for their unavailability should be provided. 3. The AOJ should obtain copies of updated VA treatment records. 4. After the above development is completed, obtain a supplemental medical opinion to determine the nature and etiology of the Veteran’s low back condition. The entire claim file (including this remand) should be made available to and reviewed by the examiner. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all lumbar spine disabilities present during the appeal period (from April 2010). (b) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service, to include his recorded fall from a ladder in October 2003? Please explain why. The clinician should consider and address as necessary the Veteran’s reports that he had back pain following his fall from service and that he did not seek treatment for his back until years later. If the examiner cannot provide an opinion without an examination, the Veteran should be scheduled for an examination (or telehealth interview, etc., if an in-person examination is not feasible). 5. Obtain a supplemental medical opinion to determine the nature and etiology of the Veteran’s dizziness. The entire claim file (including this remand) should be made available to and reviewed by the examiner. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, any disability manifested by dizziness present during the appeal period (from April 2010), to include vertigo, labyrinthitis, and acoustic neuroma. (b) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service, to include his recorded fall from a ladder in October 2003? Please explain why. (c) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected hearing loss and/or tinnitus? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The clinician should address the following: (a) the Veteran’s reports that he had vertigo following his fall from service; (b) a June 2008 private treatment record noting possible acoustic neuroma and vertigo with a new onset of tinnitus; and (c) a February 2016 VA treatment record that the Veteran has intermittent diagnosis due to a history of head injury. If the examiner cannot provide an opinion without an examination, the Veteran should be scheduled for an examination (or telehealth interview, if an in-person examination is not feasible). 6. Obtain a supplemental medical opinion to determine the nature and etiology of the Veteran’s lung condition. The entire claim file (including this remand) should be made available to and reviewed by the examiner. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all lung disabilities present during the appeal period (from April 2010). (b) For each lung disability diagnosed, did such clearly and unmistakably (undebatable) pre-exist the Veteran’s service? Please explain why. (c) If the examiner finds that the lung disability clearly and unmistakably pre-existed service, was it clearly and unmistakably (undebatable) not aggravated by service? Please explain why. (d) If the examiner finds that a lung disability either did not clearly and unmistakably pre-exist service OR was clearly and unmistakably not aggravated by service, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The clinician should address the following: (a) diagnoses of upper respiratory infection and bronchitis or complaints of shortness of breath documented in the Veteran’s February 1991, March 2005, May 2005, and June 2008 STRs; (b) the Veteran’s contention that an insulation blanket fell on him (see December 2007 STR); and (c) notations of pneumonia in early childhood and tuberculosis (see February 1987 STR and January 2001 periodic report of medical history). If the examiner cannot provide an opinion without an examination, the Veteran should be scheduled for an examination (or telehealth interview, if an in-person examination is not feasible). 7. Obtain a supplemental medical opinion to determine the nature and etiology of the Veteran’s heart condition. The entire claim file (including this remand) should be made available to and reviewed by the examiner. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all heart disabilities present during the appeal period (from April 2010). (b) For each heart disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c) For each heart disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected hypertension? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. If the examiner cannot provide an opinion without an examination, the Veteran should be scheduled for an examination (or telehealth interview, if an in-person examination is not feasible). 8. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.