Citation Nr: 21069181 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-05 464A DATE: November 17, 2021 ISSUES 1. Entitlement to service connection for weakness, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a respiratory condition, to include as secondary to service-connected PTSD. REMANDED Entitlement to service connection for weakness, to include as secondary to service-connected PTSD is remanded. Entitlement to service connection for a respiratory condition, to include as secondary to service-connected PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to January 1994. His DD-214 shows that his medals include the Southwest Asia Service Medal, with three bronze stars, and the Kuwaiti Liberation Medal, reflecting service in the Southwest Asia Theatre of Operations. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2018 and July 2021. In the December 2018 decision, the matter was remanded for further development. Following the Board's December 2018 remand, the Veteran was granted service connection for the claims of chronic fatigue syndrome and headaches. In the July 2021 decision, the matter was remanded for further development, to include an addendum medical opinion to address the etiology of this Veteran's claimed weakness and respiratory condition, to include as secondary to PTSD, and any medications used to treat the symptoms of his PTSD. The matter has returned to the Board for appellate review. For reasons explained below, the Board finds that further development is required prior to adjudication of this claim. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for weakness, to include as secondary to service-connected PTSD. Entitlement to service connection for a respiratory condition, to include as secondary to service-connected PTSD. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination is adequate when it is based on consideration of the Veteran's relevant medial history and provides the Board with sufficient information to render a fully informed decision on the claim. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). At the outset, the Board notes that the primary reason for the Board's July2021 remand was to obtain an etiological opinion that fully addresses the Veteran's claims for entitlement to service connection for weakness and a respiratory condition on a direct and secondary basis. During the course of this appeal, the Veteran has been provided with VA examinations and medical opinions in March 2020, August 2021 and September 2021 to address the etiology of this Veteran's weakness and respiratory condition on both a direct and secondary basis. See March 26, 2020, Chronic Fatigue Syndrome Examination and Medical Opinion; March 25, 2020 Sinusitis/Rhinitis examination and Medical Opinion; March 25, 2020 Muscle Injuries examination; August 20, 2021, Respiratory Conditions Examination; September 1, 2021 Medical Opinion. The Board found the March 2020 Medical Opinion inadequate with respect to his service connection claims for weakness and a respiratory condition because the examiner's rationale failed to discuss direct service connection, aggravation and the relationship to any medications used to treat the symptoms of his PTSD. See July 13, 2021 BVA REMAND, pg. 2. Although the Veteran was also afforded an August 2021 Medical Opinion, the Board observes that the Veteran was afforded an additional September 2021 Medical Opinion to fully comply with the Board's July 2021 Remand Directives. While the September 2021 medical opinion appears to adequately address the issue of direct service connection with respect to the Veteran's alleged claims for entitlement to service connection for weakness and a respiratory condition, the Board finds that the rationale is inadequate with respect to aggravation. The Board observes that the examiner addresses the issue of proximate cause, but applies the same rationale to aggravation. In relevant part, the examiner opines that that there is "no objective evidence of muscle weakness, fatigue or a significant respiratory condition. If conceded, a very mild obstructive condition likely represents early or mild asthma. It does not appear the Veteran is being treated for such. In summary, it is less likely than not that the Veterans claimed weakness and respiratory condition had its nexus in service. Weakness and respiratory complaints are not part of PTSD and would not be due to PTSD. They may be psychosomatic complaints associated with other psychological comorbidities, but this has not been determined by the appropriate mental health provider. The Veteran does not have a diagnosis of chronic fatigue syndrome. The above also applies to aggravation and includes the medications. used to treat PTSD". See September 1, 2021 Medical Opinion. Here the September 2021 Medical Opinion does not contain adequate and distinct rationale for its opinion as to whether the Veteran's service-connected PTSD, including the medications used to treat the symptoms of his PTSD, caused or aggravated his claimed weakness or respiratory condition. Specifically, the September 2021 opinion provided no distinction between the rationales provided as to causation and aggravation and, hence, it is unclear how and why the same rationale was applied to both the causation and aggravation elements of secondary service connection." Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018) (an examiner must provide a rationale that deals with causation and aggravation as independent concepts). As the Board previously requested in its July 2021 remand, a clear aggravation opinion should be obtained upon remand addressing both, causation and aggravation. See id (citing El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013)); see also Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that in the March 2020 and August 2021 examinations of record, the Veteran has asserted that his exposure to burn pits while deployed in Saudi Arabia and PTSD caused him to have weakness and a respiratory condition. See March 25, 2020 Muscle Injuries examination, pg. 2; August 20, 2021 Respiratory Conditions Examination, pg. 3; See also, November 11, 2014 Statement in Support of Claim for PTSD re: March 1991, while transporting supplies, he was exposed to clouds of smoke in Kuwait for "large period of time, also oil burnings, diesel exhaust, sulfur, which caused us both to vomit, choke..." The Board observes that no examiner has opined on this theory of entitlement. The Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). Thus, the Board finds that on remand, a physician-examiner should also opine on whether the Veteran's claimed weakness and respiratory condition is related to service, to include exposure to burn pits. Accordingly, these matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. Obtain an addendum opinion from the physician-examiner who provided the September 1, 2021 medical opinion, or another equally qualified physician if this examiner is unavailable. The entire claims file should be made available to the examiner, including a copy of this REMAND. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's weakness and respiratory condition: A) had its clinical onset during active service or is related to any in-service disease, event, or injury, to include burn pit exposures. *For purposes of this question, the examiner is invited to review the Veteran's November 11, 2014 Statement in Support of his Claim for PTSD, VA Form 21-0781 re: oil burnings, diesel exhaust exposure (receipt date, November 14, 2014); See also, March 25, 2020 Muscle Injuries examination, (medical history), pg. 2; August 20, 2021 Respiratory Conditions Examination (medical history), pg. 3. B) is proximately due to his service-connected PTSD and any medications used to treat symptoms of his PTSD. C) has been aggravated (worsened beyond natural progression) by his service-connected PTSD and any medications use to treat symptoms of his PTSD. *The physician-examiner is requested to please discuss proximate cause and aggravation separately. Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance If the physician-examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Attorney should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.