Citation Nr: 21063280 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-34 488 DATE: October 13, 2021 REMANDED Entitlement to service connection for asthma, secondary to the service-connected chronic obstructive pulmonary disease (COPD), is REMANDED. Entitlement to service connection for sinusitis, secondary to the service-connected COPD, is REMANDED. Entitlement to service connection for gastroesophageal reflux disease (GERD), secondary to the service-connected COPD, is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from June 1969 to October 1976. In June 2019, the Board addressed the claims for service connection that are listed on the title page. At that time, the Board, utilizing a fact-found basis, concluded that the Veteran was exposed to herbicide agents while stationed in Thailand. However, the Board observed that the Veteran's claimed disorders were not included among the listed diseases for presumptive service connection. See 38 C.F.R. § 3.309 (e). Additionally, the Board found that opinions, which were provided in February 2016, were not adequate to render a decision on the Veteran's respiratory-based entitlement claims for service connection. The Board also found that the Veteran was presumptively sound upon entry in the United States Army. The Board remanded the claims to obtain an opinion that addressed the etiology of any current breathing difficulties endured by the Veteran. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. 1. Entitlement to service connection for asthma and sinusitis, secondary to the service-connected chronic obstructive pulmonary disease (COPD), is remanded. In April 2015, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated claims for service connection for asthma and sinusitis, secondary to COPD. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In January 2011 and March 2015, the Veteran's service treatment records (STRs) were associated with the claims file. During the September 1976 separation examination, the Veteran responded "yes" when asked if he currently had, or ever had, asthma. The examiner who conducted the Veteran's separation physical noted that the Veteran endured an undefined lung infiltrate. In April 2015, a Patient Plan from the Western Montana Clinic was associated with the claims file. Therein, the provider's assessment / plan included treatment for GERD, Chronic Sinusitis, and Asthma. In February 2016, correspondence from the Veteran's treating physician was associated with the claims file. Therein, the provider relayed that the Veteran was receiving treatment for asthmatic bronchitis. In May 2016, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured respiratory conditions. The examiner reported a diagnosis for asthma. The VA examiner noted a May 2016 diagnosis for COPD. The examiner relayed that, "consistent with the idea that significant overlap exists among the different types of COPD, many individuals have bronchial inflammation with features of both asthma and chronic bronchitis / emphysema." In June 2019, the Veteran supplied testimony to the undersigned Veterans' Law Judge (VLJ). When the undersigned asked if the Veteran had difficulty breathing during and/or after service, the Veteran testified that, "when I left service at Fort Lewis, Washington, I had had a real bad episode. And it went on for over a month. And they couldn't figure out what it was. They kept me, they actually quarantined me for 24-hours for tuberculosis. And then, they gave several possible diagnoses." The Veteran testified that he has had difficulty breathing after separation from active duty service. The Veteran testified that his treating physician endorsed the conclusion that asthma and sinusitis were secondary to the service-connected COPD. In January 2020, the Veteran underwent a VA examination that addressed the nature and etiology of any sinusitis / rhinitis and other conditions of the nose, throat, larynx and pharynx. The examiner reported that the Veteran did not have, and had never been diagnosed with, a sinus, nose, throat larynx or pharynx condition. In a separate piece of correspondence, the examiner relayed that, "I do not find evidence sufficient to make a diagnosis of either acute or chronic sinusitis . . .. However, a definitive evaluation for chronic sinusitis should include CT imaging based on current guidelines . . .." In January 2020, the Veteran underwent a VA examination that addressed the nature and etiology of respiratory conditions. The examiner reported current diagnoses for constrictive bronchitis and COPD. The examiner opined that the claimed asthma 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 remarked that, "(t)here is support for the idea that in some patients, the two conditions (asthma and COPD) may co-exist, called an overlap syndrome . . .. Response to bronchodilators in this veteran's case in both available PFT data and in veteran's stated response to them suggest that COPD is a more accurate diagnosis. A current PFT is being arranged but is not expected to show changes in the pattern of those done in 2011 and 2016 based on the unchanging nature of veteran's symptoms from 2016 to now." In August 2021, the Veteran's representative submitted an Appellate Brief. Therein, the representative posited that the Veteran believed that he currently endured the symptoms of asthma and sinusitis. The Board acknowledges that the Veteran is competent to report his respiratory symptomsduring and after U.S. military service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Initially, the Board observes that the January 2020 VA examiner reported that the Veteran did not have asthma and/or sinusitis in the examination reports. However, the April 2015 Patient Plan assessed chronic sinusitis and asthma. Also, in February and May 2016, the private provider and VA examiner relayed that the Veteran endured asthma. In June 2019, the Veteran testified that his treating physician had concluded that asthma and sinusitis were secondary to the service-connected COPD. The Board is mindful that, pursuant to McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the requirement of the existence of a current disability for the purpose of a grant of service connection is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Based on the evidence of record, to include the January 2020 VA examination report(s), the Board finds that there is some ambiguity as to whether the Veteran has been diagnosed with asthma and/or sinusitis during the course of the appeal. On remand, a different VA examiner should review, and clearly address, the pertinent evidence in the claims file for the claims for service connection for asthma and sinusitis, during the period on and after April 7, 2015. The Board notes that the January 2020 VA examiner relayed that COPD and asthma may co-exist. However, the Board finds that because of the ambiguity created by the January 2020 VA examination report(s), on the presence of asthma at any point during the claim period, another / new VA examination report is necessary before a decision may be rendered for the Veteran's claim for service connection for asthma. The Board also notes that the January 2020 VA examiner reported that the Veteran did not have current diagnoses for sinusitis and/or asthma. However, the examiner relayed that an evaluation / diagnosis for sinusitis should include CT imaging. The examiner also relayed that the Veteran was going to be scheduled for a PFT to address a current asthma diagnosis. In September 2020, the Veteran's government-generated medical records were associated with the claims file. After review, the Board observes that the records do not contain the results of a PFT study, which was indicated and/or arranged by the January 2020 examiner. Ultimately, the Board finds that the Veteran's claims for service connection for sinusitis and asthma should be remanded. On remand, the AOJ should adhere the remand directives supplied below. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), secondary to the service-connected COPD, is remanded. In April 2015, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for service connection for GERD, secondary to the service-connected COPD. In January 2020, the Veteran underwent a VA examination that addressed the nature and etiology of esophageal conditions. The examiner reported current diagnoses for GERD and Barret's esophagus. The following medical history was supplied: "(V)eteran always remembers having acid reflux with heartburn, back to his days of military service. Onset was in his twenties. He used Tums with some relief. This was never severe enough seek out medical attention until the 1990s . . .." The examiner opined that the Veteran's GERD 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 supplied the following rationale: "(a)lthough the veteran provides historical symptom description of heartburn and reflux during his military service, his STR is quiet for digestive evaluations or complaints. He also did not list digestive complaints at his exit history in Sept 1976 (checked no). The first evidence of esophageal complaints including GERD from the provided medical record is decades later. This veteran did gain about 25 pounds over the course of his service. Although obesity is a risk factor for GERD, there are several other risk factors and mechanisms in the development of GERD." In August 2021, the Veteran's representative submitted an Appellate Brief. Therein, the representative relayed that one of the Veteran's currently identified risk factors for GERD was obesity. The representative relayed that the Veteran's current obesity resulted from his inability to exercise because of the service-connected COPD. When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). At this time, the Board notes that an opinion has not been supplied to address whether obesity served as an "intermediate-step"; whether obesity was caused or aggravated by the service-connected COPD disability; and, whether COPD was responsible for weight gain that played a factor in causing the Veteran's current GERD. In short, no opinion has been obtained as to whether the Veteran's current GERD would not have occurred but for the obesity caused or aggravated by the service-connected COPD. See Walsh v. Wilke, No. 18-0495 (decided February 24, 2020), and El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that medical opinion that only addresses whether a service-connected disability caused a nonservice-connected disability does not address whether the service-connected disability aggravated a nonservice-connected disability). On remand, the agency of original jurisdiction (AOJ) should secure a VA examination report that addresses the intermediate-step theory created by the Court of Appeals for Veterans' Claims holding in Walsh. Id. Consequently, the matters are REMANDED to the AOJ for the following action: 1. The Veteran should be scheduled for a VA examination, with a new, different, and appropriate physician, to determine the nature and etiology of any asthma and sinusitis endured by the Veteran on and after April 7, 2015. The examiner should obtain (and review) any test results and/or additional evidence necessary to confirm diagnoses for asthma and sinusitis after April 7, 2015, to include a PFT or CT. The examiner must opine on whether the evidence supports that it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran maintained diagnoses for asthma and/or sinusitis at any point after April 7, 2015. The examiner must provide evidence and analysis for any negative conclusion(s). Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a) For any periods of diagnosis, is it at least as likely as not (i.e. a 50 percent probability or greater) that any asthma and/or sinusitis had its clinical onset during military service, or is otherwise related to the Veteran's active duty service in the U.S. Army? (b) For any periods of diagnosis, is it at least as likely as not (i.e. a 50 percent probability or greater) that any asthma and/or sinusitis was either (i) caused by or (ii) aggravated by the Veteran's service-connected COPD? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his asthma and sinusitis. 2. A VA examination report should be generated that addresses the nature and etiology of the Veteran's currently endured gastroesophageal reflux disease (GERD). Based upon a review of the entirety of the claims file, and the history presented by the Veteran, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (50 percent probability or greater) that the GERD currently endured by the Veteran was either (i) caused by or (ii) aggravated by the Veteran's service-connected chronic obstructive pulmonary disease (COPD)? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should specifically address whether the Veteran's service-connected COPD exasperated the Veteran's non-service-connected GERD by way of obesity. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of GERD. 3. After completing any other development that may be warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be given a supplemental statement of the case (SSOC) and a reasonable opportunity to respond before the record is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.