Citation Nr: 1321648 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 09-27 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asthma, to include as secondary to service-connected allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to December 1980, and from February 1981 to February 1984. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a February 2008 rating decision, which, inner alia, denied the Veteran's claim of entitlement to service connection for asthma. The Veteran requested a hearing before a member of the Board. In September 2011, she was notified that her hearing was scheduled for November 2011. In September 2011, the Veteran submitted statement noting that she wished to withdraw her request for a hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). The Board has previously considered this claim. In February 2013, the Board remanded the Veteran's claim for further development, specifically, to obtain a VA examination and opinion as to whether the Veteran's asthma was related to service or her now service-connected allergic rhinitis. Thereafter, in a March 2013 report, the VA examiner provided an opinion on the Veteran's claim. However, for the reasons that will be discussed in detail below, the Board concludes that there has not been substantial compliance with the Board's remand directives and the claim must again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). The issue of entitlement to a total disability rating for compensation based on individual unemployability ("TDIU") has been raised by the record (see Veteran's letter, November 2012), but has not been adjudicated by the Agency of Original Jurisdiction ("AOJ"). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the appellant if further action is required. REMAND If a VA compensation and pension examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2, 19.9(a) (2012); Bierman v. Brown, 6 Vet. App. 125, 129 (1994). The United States Court of Appeals for Veterans Claims ("Court") has held that once VA provides an examination, it must be adequate or VA must notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden to do. Id. at 124 (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)). The Veteran contends that she has asthma, which she claims is secondary to her now service-connected allergic rhinitis. In its March 2013 remand, the Board directed the AOJ to schedule the Veteran for an examination with an appropriate clinician for an opinion as to whether any asthma was caused or aggravated by allergies. Review of the examination report, however, demonstrates that the examiner was not provided with the correct disability benefits questionnaire ("DBQ") for evaluating a lung disorder like asthma, but instead, was only provided with a DBQ for rhinitis/sinusitis and other conditions of the nose, throat, larynx and pharynx. The examination report is not responsive to the Board's directives. Accordingly, although the Board regrets the necessity of a remand, it nonetheless finds that such action is necessary in order to afford the Veteran a new respiratory examination to determine the etiology of her claimed asthma. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be scheduled for a VA examination for an opinion as to whether any currently-diagnosed asthma is directly related to active duty service, or is caused or aggravated by service-connected allergic rhinitis. The RO/AMC should make sure that any DBQ is for a lung or pulmonary disorder and not simply for conditions of the nose. Any tests deemed necessary should be conducted and the complete claims folder, along with a copy of this REMAND, must be provided to the examiners. The examiners must review the complete claims folder in conjunction with the examination and must note in his/her examination report that the claims folder was reviewed. The examiner should elicit from the Veteran a thorough history of her breathing/lung disorder symptomatology and note that, in addition to the medical evidence of record, the Veteran's personal statements have been taken into account in his or her opinion. The examiner should provide an opinion as to whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood), that the Veteran's asthma had its onset in service; or was caused or aggravated (permanent worsening as opposed to temporary flare-ups or increase in symptoms) by her service-connected allergic rhinitis. All opinions must be accompanied by a complete rationale. The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, it should be so stated. In that case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record. 2. Thereafter, the issue on appeal must be readjudicated. If the benefit sought by the Veteran is not granted, the appellant and her representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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 Supp. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).