Citation Nr: 21007156 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-39 816A DATE: February 8, 2021 REMANDED Entitlement to service connection for sinus disorder, to include allergies and rhinitis, is remanded. Entitlement to service connection for respiratory disability to include cough variant asthma (claimed as breathing problems related to burn pits) is remanded. Entitlement to service connection for right hip disability is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 2000 to November 2003. The Veteran is a Persian Gulf War Veteran. These matters come before the Board of Veterans’ Appeals (Board) on appeal of March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board remanded the Veteran’s claims.   1. Entitlement to service connection for sinus disorder, to include allergies and rhinitis. 2. Entitlement to service connection for respiratory disability to include cough variant asthma (claimed as breathing problems related to burn pits). Issues 1& 2: The Veteran contends that he developed allergies and rhinitis upon his return from deployment in Iraq, stating that he was exposed to burn pits containing fuel and waste as well as smoke and toxins from those burn pits. See Form 9 (August 2017). A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board notes that, while the Veteran served in the Persian Gulf and has generally asserted that his sinus disorder and breathing problems are due to his service there, if signs or symptoms have been medically attributed to a diagnosed rather than undiagnosed illness, as is the case here, the Persian Gulf War presumption of service connection does not apply. 38 C.F.R. § 3.317; VAOPGCPREC 8-98 (August 3, 1998); 63 Fed. Reg. 56,703 (1998). The record establishes that the Veteran has been diagnosed with allergic rhinitis and asthma. In June 2019, the Board remanded the appeal to obtain a new VA examination to determine the nature and etiology of the Veteran’s asthma, finding previous examination inadequate to decide the appeal. The Board also remanded to obtain a VA examination to determine the etiology of the Veteran’s sinus disorder, to include allergic rhinitis. Pursuant to the Board’s June 2019 remand, VA examinations and medical opinions were obtained in December 2019. The Board finds the December 2019 VA medical opinions are inadequate as explained below. First, the December 2019 medical opinions were based, at least partly, on an inaccurate factual premise and present with internal incongruities. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). While the examination lists the date of onset of the Veteran’s allergic rhinitis and asthma as 2004, the opinion is based on the absence of diagnosis until 2015. Second, the essential rationale of the examiner’s opinions is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinion notes the lack of treatment for asthma in the STRs, as well as the absence of diagnoses of both asthma and allergic rhinitis until 2015, but makes no attempt to connect the lack of treatment or annotated diagnoses to its conclusion. It is noted that a medical opinion or “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In this case, the medical opinion provides no clear explanation as to why the lay statements of record are insufficient to establish ongoing symptoms since service and whether, accepting such statements of ongoing symptoms, any sinus disorder or breathing problems, to include asthma, shown during the appeal period is at least as likely as not related to in-service injury. The opinion does not explain why the Veteran’s medical history is insufficient to medically conclude that his current sinus disorder and breathing problems, to include asthma, are caused by or the result of in-service exposure to burn pits that contained fuel and waste. Third, the opinion provides no indication how the general findings that (1) allergic rhinitis is triggered by breathing in particles of allergens, including dust mites, pollen, spores, and animal skin, and (2) asthma is caused by air pollutants and irritants, cold air and physical activity which cause irritation/inflammation in the airway, are applicable to the Veteran’s specific facts. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (an opinion is inadequate when based solely on general articles without a meaningful discussion of the facts pertaining to a veteran’s condition or individual circumstances); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (noting that an excerpt from a generic medical text that doesn’t apply medical principles regarding causation or etiology to the facts of the individual veteran’s case generally won’t provide sufficient evidence, standing alone, to serve as the basis for an award of service connection). The opinion instead concluded that the Veteran was diagnosed with allergic rhinitis and asthma in 2015, which was noted as both 12 and 13 years after separation. No adequate medical opinion was rendered in regard to environmental exposures during the Veteran’s service in Southwest Asia as the cause of his sinus disorder and breathing problems, to include asthma, despite the Board June 2019 instructions. See Stegall, supra. Fourth, the VA medical opinion is inadequate because it does not reflect a meaningful discussion of the Veteran’s lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate”). In this instance, the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology such as trouble breathing and coughing. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. Here, while the examination noted the Veteran’s reports that after returning from Iraq, he noticed a cough and constantly being sick, the opinion itself did not address the Veteran’s reports, instead relying on the absence of annotated treatment during service and until 2015. Given that the VA medical opinion is absent of any meaningful discussion of this evidence, the Board finds that it may not rely upon it in its present form and, therefore, concludes that the VA medical opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Entitlement to service connection for a right hip disability. The Veteran seeks service connection for a right hip disability. The Veteran contends that a pre-existing hip condition was aggravated by the physical demands of his active service. See Form 9 (August 2017). As an initial matter, the Board notes that, in June 2019, the claim of entitlement to service connection for right hip disability was remanded for a VA examination. Although a VA examination was obtained in December 2019, the VA medical opinion is inadequate as it does not fully answer the Board’s questions. See Stegall, supra. An adequate medical opinion must be “accurate and fully descriptive,” 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran’s prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez, 22 Vet. App. at 304 (“most of the probative value of a medical opinion comes from its reasoning”). An adequate medical examination report or opinion must also “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo, 26 Vet. App. at 106. In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was “informed of sufficient facts upon which to base an opinion relevant to the problem at hand.” Nieves-Rodriguez, 22 Vet. App. at 303. First, even though the VA medical opinion notes that the Veteran’s service treatment records (STRs) are silent for complaints, treatment or findings for any right hip disorder, it does not provide the Board a reasoned rationale explaining why the lack of documented complaints/findings in the STRs supports the negative conclusions. See Stefl, 21 Vet. App. at 124 (2007) (“a medical opinion... must support its conclusion with analysis that the Board can consider and weigh against contrary opinions”). For example, the VA medical opinion provides, “there is no evidence of treatment or care for right hip during service dates. Veteran’s right hip condition is pre existing. A nexus has not been established.” Similarly, although the opinion notes that “Perthes disease is a rare childhood condition that affects the hip… has a complex process of stages that can last several years,” it does not provide the Board a reasoned rationale connecting these findings with the conclusion. Second, the VA medical opinion relied on general studies regarding Perthes disease, but did not support the negative conclusions reached. The VA medical opinion does not reveal a discussion connecting the general studies to the Veteran’s condition or individual circumstances. Indeed, no facts specific to the Veteran vis-à-vis the medical research were discussed. See Bailey, 30 Vet. App. at 60 (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran’s condition or individual circumstances is inadequate). For instance, the VA medical opinion, in finding that the Veteran’s preexisting right hip disability was not aggravated during service relied on the absence of evidence of treatment of care for right hip during service, but did not address the Veteran’s reports of worsening symptoms during service as well as the examination finding that he uses a cane to walk, which was not noted during service or at the time of separation from service. It appears that the opinion does not reveal a meaningful discussion connecting any medical studies, which were note cited, to the conclusion reached. Third, the VA medical opinion is inadequate, because it did not address the findings of the 2015 x-ray, including extreme varus deformity, abnormal sclerosis of the acetabulum, and degenerative changes of the hip joint, and, consequently, provided no etiological opinion in regard to those diagnoses. Fourth, the VA medical opinion is inadequate because it does not reflect a meaningful discussion of the Veteran’s lay statements. See McKinney, supra. In this instance, the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. For instance, while the examination noted the Veteran’s reports that the physical demands of service caused aggravation to his right hip, which began early on during boot camp and continued throughout service, the opinion itself did not address the Veteran’s reports, instead relying on the absence of annotated treatment during service. Given that the VA medical opinion is absent of any meaningful discussion of this evidence, the Board finds that it may not rely upon it in its present form and, therefore, concludes that the VA medical opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. 4. Entitlement to service connection for low back disability. The Veteran seeks service connection for a low back disability, to include as related to his right hip disability. Because a decision on the remanded issue of entitlement to service connection for a right hip disability could significantly impact a decision on the issue of entitlement to a low back disability, the issues are inextricably intertwined. Therefore, consideration of this claim must be deferred pending the outcome of the hip claim. See Harris v. Derwinski,1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain all VA treatment records dated August 2020 to the Present. 2. Thereafter, obtain an addendum opinion from an appropriate clinician to address the nature and etiology of any sinus disorder including allergic rhinitis. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including environmental exposure (burn pits, particulates, etc.) during his deployment to Southwest Asia (Iraq). A complete rationale is required. In answering all questions, please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusions reached, and (2) explain how that evidence supports the conclusions reached. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of any asthma. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including environmental exposure during his deployment in Iraq to burn pits. A complete rationale is required. In answering all questions, please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusions reached, and (2) explain how that evidence supports the conclusions reached. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right hip disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The report of examination should, among other things, address all of the Veteran’s right hip diagnoses during the appeal period, and include a discussion of the Veteran’s documented history and assertions. (a.) For all right hip diagnoses during the appeal period, opine on whether each clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, opine on whether it is at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. (b.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, address, for all right hip diagnoses during the appeal period, whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Consider the Veteran’s reported history of worsening right hip symptoms since service. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.