Citation Nr: 21011402 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-06 670 DATE: March 1, 2021 REMANDED The issue of service connection for chronic obstructive pulmonary disease (COPD) is remanded. The issue of service connection for a degenerative arthritis of the spine is remanded. The issue of service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from May 1963 to March 1971, with 20 years of additional reserve service. These matters come before the Board of Veterans’ Appeals (Board) from an August 2018 rating decision. The Veteran testified before the Board at a hearing in January 2021. A transcript of the hearing has been associated with the claims file. COPD The Board finds that further development is necessary regarding the Veteran’s claim of service connection for COPD. The Veteran provided testimony regarding his claim of service connection for COPD at the January 2021 hearing before the Board. The Veteran stated that during active duty service he worked on the flight line and that his duties included fueling aircraft, which caused exposure to fumes and fuel. The Veteran stated that his symptoms related to COPD first began during active duty service following exposure to fumes and fuel and that he sought medical treatment during service. The Veteran stated that his symptoms related to COPD continued after separation from service to the present, including during reserve service where he was also exposed to fumes and fuel, and that he has a present diagnosis of COPD. Additionally, the Veteran stated that he has attempted to obtain his complete personnel file, including service treatment records (STRs), without success and that the regional office (RO) has also attempted to obtain his complete personnel file without success. The Veteran also provided further information regarding his active duty and reserve service to assist in attempts to obtain his complete personnel file. The Veteran stated that he served on active duty until 1971, served in the reserves in New Jersey from approximately 1971 to 1980, and served in the reserves in Alabama from approximately 1980 to 1991. The Board has reviewed the evidence of record and finds that only limited STRs and personnel records from the Veteran’s reserve service have been associated with the claims file and that complete STRs and personnel records from both active duty and reserve service are still outstanding. Although the RO has made previous attempts to obtain the Veteran’s complete personnel file and made a formal finding of unavailability in August 2018, the Board finds that further attempts should now be made in light of the Veteran’s detailed testimony regarding service dates and locations. Further, the Board notes that limited personnel files associated with the claims file in May 2018 demonstrate that the Veteran had extensive exposure to fuel and chemicals during reserve service, including during periods of ACDUTRA. Specifically, personnel records dated September 2008 list the Veteran’s service dates, including numerous ACDUTRA dates. Additionally, personnel records dated November 1985 state that the Veteran has a vast knowledge of fuels augmented by his many years of experience, which makes him a very valuable asset to the fuels branch. Moreover, in personnel records dated May 1988 the Veteran was described as a quality assurance officer, who performs procurement quality assurance on petroleum products and related services, and the records indicate that the Veteran also performed duties assisting in fueling a petroleum tanker ship. Thus, the Board finds that the available personnel records indicate that the Veteran had extensive exposure to fuel and chemicals during service, including reserve service. Therefore, the Board finds as the evidence indicates that the Veteran's symptoms related to COPD may have started during service, following exposure to chemicals and fuel, and continued since service to the present and the Veteran has a present diagnosis of COPD that the low threshold for obtaining a VA examination has been met in this case. Accordingly, a remand is necessary for the VA to properly fulfill its duty to assist in providing a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Degenerative Arthritis of the Spine The Board finds that further development is necessary regarding the Veteran’s claim of service connection for degenerative arthritis of the spine. The Veteran provided testimony regarding his claim of service connection for degenerative arthritis of the spine at the January 2021 hearing before the Board. The Veteran stated that in approximately 1967 during active duty service he fell while working in the commissary warehouse causing an injury to his back. The Veteran stated that he sought medical treatment during active duty service on a few occasions regarding the back pain from his fall. The Veteran stated that his back pain also continued and was aggravated during reserve service due to lifting heavy hoses as a part of his fueling duties. Lastly, the Veteran stated that his symptoms related to back pain started during service and continue to the present. Next, the Veteran underwent an in-person VA examination regarding his degenerative arthritis of the spine in July 2018. The examiner documented that Veteran’s low back pain began in 1990 with progression of pain. The examiner documented that the Veteran was diagnosed as having degenerative disc disease. The examiner opined that it is less likely than not that the Veteran’s degenerative arthritis of the spine was incurred in or caused by service. The examiner stated that during active duty service there is no evidence of chronicity of care and that a nexus had not been established. In the rationale, the examiner stated that the Veteran was diagnosed as having lumbar degenerative disc disease in 2009, that the Veteran served on active duty from 1963 to 1971, and that the Veteran served in the reserves from 1971 to 1991. The examiner therefore determined that the Veteran does not have a diagnosis of a low back disability that was incurred in or caused by service. The Board finds the conclusions of the July 2018 VA examination to be inadequate. First, the examiner relied solely on the fact that during active duty service there is no evidence of chronicity of care. The Board notes that the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Additionally, as noted above, the Veteran's complete personnel files, including the active duty STRs, have not been associated with the claims file, and a remand is required in light of new evidence to attempt to obtain these records. Thus, there were no STRs available from the Veteran’s period of active duty for the examiner to review and make the determination that there was no chronicity of care during active duty service. Second, the Veteran’s lay statements regarding his in-service back injury, in-service medical treatment, and symptoms of back pain during active duty and reserve service continuing to the present were not yet of record for the July 2018 VA examiner to properly consider. Therefore, an addendum opinion is required to properly consider the Veteran’s lay statements. Lastly, the evidence of record indicates that the Veteran’s back symptoms continued during reserve service and were aggravated by duties performed during reserve service, including during periods of ACDUTRA. Therefore, an addendum opinion regarding aggravation of the Veteran’s back symptoms during reserve service is also required. When VA obtains an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the matter must be remanded for a new examination. Hypertension The Board finds that further development is necessary regarding the Veteran’s claim of service connection for hypertension. The Veteran provided testimony regarding his claim of service connection for hypertension at the January 2021 hearing before the Board. The Veteran stated that he was diagnosed as having hypertension while serving in the reserves in approximately 1980. The Veteran asserts that his hypertension was caused or aggravated by service. Next, the Veteran underwent an in-person VA examination regarding hypertension in July 2018. The examiner documented that the onset of the Veteran’s hypertension was in 1978. The examiner opined that it is less likely than not that the Veteran’s hypertension was incurred in or caused by service. The examiner stated that during active duty service there is no evidence of chronicity of care and that a nexus had not been established. In the rationale, the examiner noted that the Veteran’s 1978 reserve periodic examination and 1981 reserve periodic examination indicate a diagnosis of benign systemic hypertension; however, the examiner determined that the Veteran's active duty service dates do not reveal a diagnosis or treatment for hypertension. The examiner therefore determined that the Veteran does not have a diagnosis hypertension that was incurred in or caused by service. The Board finds the conclusions of the July 2018 VA examination to be inadequate. First, the examiner relied solely on the fact that during active duty service there is no evidence of chronicity of care. The Board again notes that the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Additionally, as noted above, the Veteran’s complete personnel files, including active duty STRs, have not been associated with the claims file, and a remand is required in light of new evidence to attempt to obtain these records. Thus, there were no STRs available from the Veteran’s period of active duty for the examiner to review and make the determination that there was no chronicity of care or to determine that the Veteran’s active duty service dates do not reveal a diagnosis, treatment, or evidence regarding hypertension. Lastly, the examiner failed to provide a well-reasoned medical explanation regarding the etiology of the Veteran's hypertension and how the cited medical evidence precluded a positive nexus opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, this matter must be remanded for an addendum VA examination opinion. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran’s complete STRs and personnel records in light of the Veteran’s newly provided evidence. As noted, the Veteran served on active duty in the Air Force from May 1963 to March 1971, served in the reserves in New Jersey from approximately 1971 to 1980, and served in the reserves in Alabama from approximately 1980 to 1991. If such records are unavailable, clearly document the claims file to that effect and notify the Veteran of an inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Following the completion of the above, schedule the Veteran for an examination to determine the nature and etiology of his COPD. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s COPD had its onset during service or is otherwise related to service, including exposure to chemicals and fuel during active duty and reserve service? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. 3. Schedule the Veteran for an examination to determine the nature and etiology of his degenerative arthritis of the spine. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Elicit from the Veteran a complete history of degenerative arthritis of the spine symptomatology, including any symptomatology and treatment during active service and reserve service, as well as his complete post-service history of symptoms and treatment. b. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s degenerative arthritis of the spine had its onset during service or is otherwise related to service? The examiner should consider the Veteran’s lay statements regarding an in-service fall causing a back injury and continuing symptoms of back pain during active duty and reserve service to the present. c. Whether the Veteran’s degenerative arthritis of the spine is at least as likely as not (50 percent or greater probability) aggravated beyond the natural progression of disease by a period, or periods, of ACDUTRA in reserve service. The examiner is advised aggravation means any increase in the severity of the underlying disability beyond its natural progression. The examiner should consider the Veteran’s lay statements regarding aggravation of back pain during reserve service. In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. 4. Obtain an addendum opinion regarding the Veteran’s claim of service connection for hypertension. The claims folder must be made available to and be reviewed by the examiner. Whether another examination is needed is left to the examiner’s discretion. The examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset during service or is otherwise related to service? b. Whether the Veteran's hypertension is at least as likely as not (50 percent or greater probability) aggravated beyond the natural progression of disease by a period, or periods, of ACDUTRA in reserve service? The examiner is advised aggravation means any increase in the severity of the underlying disability beyond its natural progression. In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. The examiner should also consider all lay statements submitted by the Veteran regarding his disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.