Citation Nr: 1648518	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  10-23 094	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a respiratory disorder, to include bronchial asthma.

4.  Entitlement to service connection for high blood pressure, to include as secondary to a respiratory disorder.


REPRESENTATION

Appellant represented by:	Jonathan Bruce, Attorney at Law



ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1955 to November 1957.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

In May 2012, the Board remanded these issues for further development, and the case has since been returned to the Board.  As will be discussed in greater detail below, the Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with the September 2013 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The issue of whether there was clear and unmistakable error in a February 2013 statement by the Veteran's attorney, but it has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.





REMAND

Although the Board regrets the additional delay, a remand is necessary in order to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims, so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016).

Initially, as noted in the May 2012 remand, the Veteran indicated that he received treatment from the San Juan VA Medical Center (VAMC) since 2006, but that no VA treatment records were associated with the claims file.  The Board thus directed the AOJ to obtain any outstanding VA treatment records from the San Juan VAMC and associate those records with the claims file.  In November 2013, the AOJ requested records from the San Juan VAMC, but there are no VA treatment records associated with the claims file, and there is no indication that the VAMC responded to the AOJ's request.  Notably, however, the January 2014 supplemental statement of the case indicated that VA treatment records dated from June 2012 to January 2014 were considered.

On remand, any VA treatment records relevant to the Veteran's claims, including any VA treatment records from the San Juan VAMC dated since 2006, not already associated with the claims file must be obtained and associated with the Veteran's claims file.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to an including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered).  He should be provided the opportunity to identify any additional private treatment records that are relevant to his claims, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records.  See 38 C.F.R. § 3.159(c).

Bilateral Hearing Loss and Tinnitus

With respect to the Veteran's claims for service connection for bilateral hearing loss and tinnitus, he contends that such are a result of his in-service noise exposure, including his exposure to artillery noises.  His military personnel records confirm that his military occupational specialty was as a field artillery specialist.

The Veteran's service treatment records do not contain any audiometric results, but his entrance and discharge examinations note normal whisper test results.

In June 2012, the Veteran underwent a VA examination to address the nature and etiology of his tinnitus and bilateral hearing loss.  The examiner noted that he denied tinnitus during the examination.  As to the Veteran's hearing loss, the examiner opined that it was less likely than not related to his military service.  The examiner reasoned that his whisper tests during service were both normal, and that there were no complaints of hearing loss in his service treatment records or immediately after service.  Instead, the examiner indicated that his hearing loss could be the result of the natural aging process, post-service noise exposure, or a combination of both.  Because the Veteran did not report tinnitus, the examiner did not provide any opinion as to its etiology.

The Veteran underwent another VA examination in January 2014.  The examiner noted that his whisper voice test were normal during service.  The examiner opined that the Veteran's bilateral hearing loss was not related to his military service.  The examiner reasoned that there were no complaints of or treatment for hearing loss in his service treatment records or immediately after service.

The Board finds that both opinions are inadequate because the examiners failed to provide an adequate rationale for the opinions.  In this regard, the examiners' rationale relies solely on the fact that the Veteran had normal hearing upon leaving service.  However, the finding of normal hearing at discharge is not an adequate basis for denying a claim for service connection, especially given the evidence of noise exposure as a result of his military occupational specialty in service and his lay statements concerning continuity of symptoms.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (an examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records, and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion).  In this regard, the Veteran has consistently reported that his hearing progressively worsened from the time he left service until the present.  However, the opinions do not reflect consideration of these statements.

With respect to the Veteran's claim for service connection for tinnitus, the Board notes that, while he may have denied tinnitus during the June 2012 and January 2014 VA examination, his other lay statements and private treatment records indicate problems with tinnitus during the appeal period.  Moreover, he has consistently asserted experiencing ongoing problems with tinnitus since service.  The examinations do not reflect consideration of his statements regarding the nature, onset, and continuity of symptoms related to tinnitus.  See Dalton, supra.

The Court has held that a medical examination report must not contain only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  Additionally, the Veteran is competent to assert that he has had continuing problems with hearing loss and tinnitus from or proximate to service to the present time.

Therefore, given the Veteran's competent lay statements concerning problems with hearing loss and tinnitus continuously following service, an addendum opinion that reflects consideration of these statements should be obtained.

Respiratory Condition

The Veteran contends that his respiratory condition had its onset in service and that it has continued since that time.  While his December 1955 entrance examination and October 1957 discharge examinations note normal lungs and chest, he received treatment in September 1957 for viral influenza, an Asiatic strain.  Additionally, after testing, it was noted that he had a right costophrenic angel which was probably due to an old pleural reaction.  Although he underwent a VA examination in March 1972, the Board noted that the examiner failed to provide an etiology opinion.  Thus, it directed the AOJ to schedule the Veteran for a new examination.

In June 2012, the Veteran underwent a VA examination to address the nature and etiology of his bronchial asthma.  The examiner noted a diagnosis of asthma in 1957 according to the Veteran.  He stated that he had been suffering from asthma since his discharge and that he had been under treatment ever since.  The examiner reasoned that there was no evidence of asthma in the service treatment records, and that bronchitis had a different etiology than bronchial asthma.

In January 2014, the Veteran underwent another VA examination.  The examiner noted a diagnosis of asthma since 1957, and his in-service hospitalization for bronchitis, as well as his complaints of shortness of breath and coughing following service, and that these symptoms had continued.  The examiner opined that the Veteran's bronchial asthma was not related to his diagnosis of bronchitis in service because that condition was resolved after treatment.

Once again, the Board finds that both opinions are inadequate because the examiners failed to provide an adequate rationale for the opinions.  In this regard, the examiners' rationale relies solely on the fact that the Veteran's service treatment records were silent for any specific complaints related to asthma.  The opinions provided do not reflect any consideration of his lay statements concerning the onset and continuity of his breathing problems from the time he was hospitalized during service for bronchitis to the present.  See Dalton, supra.  In this regard, the Veteran has consistently reported that he experienced breathing problems during service and that they progressively worsened thereafter.  However, the opinions provided do not reflect adequate consideration of the Veteran's lay statements.  

Therefore, given the Veteran's competent lay statements concerning problems with respiratory problems continuously since his military service, an addendum opinion that reflects consideration of these statements should be obtained.  See Nieves-Rodriguez, supra; Stefl, supra.


High Blood Pressure

Finally, the Veteran contends that his high blood pressure is secondary to the medication he takes for his respiratory disorder.  The Board directed the AOJ to schedule him for an examination to address the relationship between the Veteran's high blood pressure and his respiratory disorder.

In June 2012, the Veteran underwent a VA examination to address the nature and etiology of his hypertension.  The Veteran reported hypertension for the past few years, and denied any problems related to hypertension while in service.  No etiology opinion was provided.

In January 2014, the Veteran underwent another VA examination.  The examiner noted hypertension since 2000.  The examiner opined that hypertension was not related to his military service because his service treatment records were silent for any complaints related to hypertension, and he denied hypertension in service.

The Board finds that the opinions are inadequate.  Specifically, although the Board requested an opinion that addressed whether there was a secondary relationship between the Veteran's respiratory disorder and his high blood pressure, the examiners merely provided opinions as to whether the Veteran's high blood pressure was directly related to his military service.  Because the examiner failed to address the questions posed, the Board finds that there was not substantial compliance with the prior remand

Therefore, an addendum etiological opinion that adequately addresses the questions posed by the Board should be obtained.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain and associate with the electronic claims file any VA treatment records from the VAMC in San Juan Puerto Rico, dated from 2006 to the present.

2.  Contact the Veteran and request that he provide the necessary authorization(s) to obtain any outstanding private medical records pertinent to his claims.  Make at least two (2) attempts to obtain records from any identified source.  

3.  If any of the records requested above cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

4.  After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's January 2014 audiological examination.  The record and a copy of this Remand must be made available to the examiner.  If the January 2014 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

Following a review of the entire record, to include the Veteran's lay statements concerning his in-service noise exposure, as well as the onset and continuity of symptomatology, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss and tinnitus had its onset during, or is otherwise related to, his active duty service, to include his conceded in-service noise exposure as a field artillery specialist.

In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration.

A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any evidence of hearing problems in the Veteran's service treatment records.

5.  After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's January 2014 respiratory examination.  The record and a copy of this Remand must be made available to the examiner.  If the January 2014 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

Following a review of the record, to include the Veteran's lay statements, the examiner should answer the following question:

For any currently-diagnosed respiratory disorder, to include bronchial asthma, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such is related to the Veteran's military service, to include his in-service treatment for bronchitis and viral influenza, Asiatic strain.  

The examiner must address the March, April, and May 1971 VA examinations reports, any private or VA treatment records, and any other relevant information.  In addition, the examiner's opinion must also reflect consideration of the lay statements concerning his in-service symptoms and continuity of symptomatology.

A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any evidence of a diagnosis of asthma in the Veteran's service treatment records.  In this regard, a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board.

6.  After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's January 2014 hypertension examination.  The record and a copy of this Remand must be made available to the examiner.  If the January 2014 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

Following a review of the record, to include the Veteran's lay statements, the examiner should answer the following questions:

a)  For the Veteran's currently-diagnosed hypertension, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such is related to the Veteran's military service.

b)  For the Veteran's currently-diagnosed hypertension, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such is caused by his respiratory disorder.

c)  For the Veteran's currently-diagnosed hypertension, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such is aggravated by his respiratory disorder.  If the examiner determines that there is aggravation, the examiner should state, to the best of their ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation.

The opinion provided must reflect consideration of the March and April 1971 VA examination reports, the Veteran's private and VA treatment records, as well as his service treatment records.  In addition, the examiner's opinion should also reflect consideration of the lay statements concerning his in-service injury and continuity of symptomatology.

A complete rationale should be given for each opinion expressed.  In this regard, a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board.

7.  Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated.  If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).
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