Citation Nr: 18158113 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 11-29 579 DATE: December 14, 2018 REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for an acquired psychiatric disorder, to included posttraumatic stress disorder (PTSD), anxiety, and depression is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a back disability, to include DJD is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active military service in the US Army from January 1968 to December 1969. This case was previously before the Board in June 2017. The Board denied several of the Veteran’s claims and he appealed to the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018 Order granting a partial Joint Motion for Remand (Joint Motion), the Court vacated and remanded a portion of the June 2017 Board decision denying entitlement to service connection for (1) asthma, (2) an acquired psychiatric disorder, to included posttraumatic stress disorder (PTSD), anxiety, and depression; (3) a cervical spine disability; (4) a back disability, to include DJD; (5) a left foot disability; (6) right foot disability; (7) right ear hearing loss; and (8) a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran agreed to abandon his claims for entitlement to service connection for (1) a heart disability; (2) a left ankle disability; (3) a right ankle disability; (4) a left shoulder disability; (5) a right shoulder disability; (6) a left knee disability; (7) a right knee disability; and (8) tinnitus. Lastly, the parties agreed not to disturb the part of the June 2017 Board decision that granted entitlement to service connection for left ear hearing loss. Unfortunately, prior to the Board adjudicating the claim on appeal, it is necessary to remand this appeal in order to comply with the Court’s August 2018 order granting the parties’ partial Joint Motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled.). The evidence suggests that there are outstanding federal records located in Legacy VISTA Blood Bank System, specifically from July 6, 1967, and there is no indication that VA has made any attempt to retrieve such records. Regarding the Veteran’s claim for a cervical spine and back disabilities, the Veteran has not been afforded a VA examination to determine the etiology of his current disabilities and whether they are related to service. However, the evidence of records suggest that the Veteran should be afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran filed a claim for service connection for an asthma disability. The Board denied the claim, stating that he was not sound upon entrance, and that there is was no evidence of aggravation or that increased in severity during the Veteran’s active military service. However, in the Joint Motion, the Court stated that the Board did not explain how the Veteran’s asthma disability was documented upon entrance, give the Courts decision in Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (the Court found that “the term ‘noted’ denotes ‘only such conditions as are recorded in examination reports’ and that ‘history of preservice existence of conditions recorded at the time of the examination does not constitute a notation of such condition.’” As such, the Board is remanding this claim for a new examination, where the examiner is asked to provide a medical opinion on the Veteran’s asthma disability, with the presumption that the Veteran was sound upon entrance. The issue of TDIU is also being remanded as it is inextricably intertwined with the other remanded claims. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Associate with the claims file pertinent outstanding federal medical records located in Legacy VISTA Blood Bank System, specifically from July 6, 1967. If the records are not available, a formal finding of unavailability should be issued and the Veteran should be notified of such. 2. Associate with the claims file pertinent outstanding VA treatment records since June 2018. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms or complaints regarding any of his service connection claims. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination to determine the nature, onset, and etiology of his cervical spine and low back impairment. The examiner should review the claims file and conduct any necessary testing. (a.) The examiner should provide an opinion as to whether it is more likely than not that the Veteran’s cervical spine and low back impairment is related to or had its onset in service. (b.) The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must provide a rationale for this conclusion. If appropriate, pertinent medical treatise literature should be cited. 5. Schedule the Veteran for an appropriate VA examination to determine the nature, onset, and etiology of his asthma. The examiner should review the claims file and conduct any necessary testing. (a.) The examiner is asked to presume that the Veteran was sound upon entrance into service. (b.) The examiner should provide an opinion as to whether it is more likely than not that the Veteran’s currently diagnosed asthma is related to his active military service. (c.) The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must provide a rationale for this conclusion. If appropriate, pertinent medical treatise literature should be cited. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson