Citation Nr: 18142875 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 12-11 539 DATE: October 17, 2018 REMANDED Entitlement to service connection for a respiratory disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from October 1958 to December 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Tiger Team in Cleveland, Ohio. Jurisdiction of the appeal currently resides with the Houston, Texas Regional Office (RO). By that rating action, the RO denied service connection for a bronchial condition, to include asthma. The Veteran appealed the RO’s June 2009 rating action and the RO’s determination therein to the Board. In February 2017, the Veteran and his spouse testified at a videoconference hearing at the RO before the undersigned sitting in Washington, D. C. A copy of the hearing transcript is of record. In an October 2018 written argument to the Board, the Veteran’s representative waived initial RO consideration of private and VA medical evidence received after issuance of an August 2018 Supplemental Statement of the Case and the appeal’s recertification to the Board in early October 2018. Thus, a remand to have to the Agency of Original Jurisdiction (AOJ) initially consider this evidence in a SSOC is not required. 38 C.F.R. §§ 19.37, 20.1304 (2018). A remand is required, however, for reasons that are discussed in the following paragraphs. In April 2017 and, more recently in August 2018, the Board remanded the appeal for additional development and adjudication. However, the required compliance with the Board’s remand instructions has not been achieved. As such, this issue is being remanded again. In its April 2017 remand directives, the Board instructed the AOJ to schedule the Veteran for a VA examination with an opinion to clarify the etiology of the Veteran’s respiratory disorder. The VA examiner was advised to consider the Veteran’s and his wife’s lay statements that he had received treatment for respiratory symptoms in service and was diagnosed with bronchitis in 1976. The Board also requested that the VA examiner address a June 2017 medical opinion from a private physician, indicating his belief that the Veteran’s current chronic respiratory conditions, including chronic obstructive pulmonary disease (COPD), were related to his in-service herbicide exposure while serving in Vietnam. (See medical opinion from P. Sepulveda, MD, dated June 7, 2017). The VA examiner was also to provide a complete rationale for the opinion provided. VA examined the Veteran in October 2017. (See October 2017 VA Respiratory Disability Benefits Questionnaire (DBQ) and opinion)). The October 2017 VA examiner concluded that the Veteran’s abnormal pulmonary function test results were not related to service. Id. As noted by the Board in its August 2018 remand, although the VA examiner had provided some explanation for the negative opinion, she did not reference, or even acknowledge, the prior diagnoses of asthma, bronchitis, hyperactive airways disease, and allergic rhinitis beginning in the 1980s. (See clinical records from USAF Clinic at Kelly AFB). In addition, the October 2017 VA examiner’s opinion did not reflect consideration of Dr. P. S’s favorable opinion that the Veteran’s current disability was related to herbicide exposure. Thus, for these reasons the Board remanded the appeal for another VA examination in August 2018. (See August 2018 Board remand). Prior to the Veteran being scheduled for another VA examination, however, the appeal was prematurely returned to the Board. Accordingly, corrective action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (where there has not been compliance with remand orders of the Board, the Board, as a matter of law, errs when it fails to ensure compliance). The matter is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination. The examiner should elicit a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran’s documented medical history. Any medically indicated testing should be accomplished. The examiner must utilize the appropriate DBQ. The examiner must address all respiratory diagnoses already of record, including asthma, bronchitis, hyperactive airways disease, and allergic rhinitis, and offer an opinion even if a specific diagnosis has resolved (as the requirement for a current disability for VA purposes is met when the Veteran has a diagnosis such that he based his claim on the same, or had it during the pendency of the claim). If any previously rendered diagnosis was later corrected to reflect a more accurate diagnosis, the examiner should state the same. The examiner should state whether it is at least as likely as not, i.e., at least a 50 percent probability or greater, that any respiratory disorder, including asthma, bronchitis, hyperactive airways disease, and allergic rhinitis, began during service or was caused by the presumed in-service exposure to herbicide agents. It is understood that asthma, bronchitis, hyperactive airways disease, and allergic rhinitis are not on the list of diseases considered presumptively caused by exposure to herbicides under 38 C.F.R. § 3.309 (e) (2018). This opinion seeks a discussion as to direct causation. If any diagnosed respiratory disorder cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation why that is. The examiner should consider the June 2017 opinion from Dr. Sepulveda, and the lay statements of the Veteran and his spouse that he developed respiratory symptoms in service, used a respiratory machine and inhaler for treatment, and was diagnosed with bronchitis in 1976. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel