Citation Nr: 20047532 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 16-37 038 DATE: July 16, 2020 REMANDED Entitlement to service connection for a respiratory disability (claimed as a breathing problem due to burn pit exposure) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from May 1996 to October 1996, August 2004 to January 2006, and August 2008 to October 2009. The records reflect that the Veteran served during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was previously before the Board in January 2019 at which time it was remanded for a VA examination to determine whether the Veteran has a current diagnosis of a respiratory disability. Entitlement to service connection for a respiratory disability (claimed as a breathing problem due to burn pit exposure) The Veteran contends that he experienced dyspnea and other respiratory difficulty during deployment in 2009 and had been previously diagnosed and treated for asthma, post deployment, which he believes is a result of his exposure to burn pit during his active military service. See, October 2013 Notice of Disagreement (NOD). See, June 2020 Appellate’ s Brief. The RO has conceded the Veteran’s active service in the Southwest Asia theater of operations during the Persian Gulf War. See, June 2016 Statement of the Case (SOC). The Board notes that the record contains four imaging studies, each of which respectively reflect no evidence of respiratory abnormalities. Specifically, the Veteran’s April 2011 chest x-ray (Dallas VA) impression reading results revealed that there was no lung abnormality (Impression: there is no active chest process); followed by his March 2014 chest x-ray (Dallas VA), which also revealed no evidence of acute or significant cardiopulmonary abnormality, with a corresponding comment that there was no notable change since his previous April 2011 chest x-ray. Further, the Veteran’s objective Pulmonary/Respiratory testing (PFT) conducted in July 2014 was normal (Interpretation: normal spirometry; no bronchodilator response; diffusion capacity for carbon monoxide is normal), and most recently, an October 2019 PFT, which also reflects normal results (Interpretation/Impression: Normal Spirometry). However, the Board also acknowledges the Veteran’s prior diagnosis of “UNSP ASTHMA, UNCOMP” in November 2015, in conjunction with a corresponding assessment of “ACUTE SINUSITIS, UNSP”. Hence, the reason for the Board’s January 2019 remand for a new VA examination. During this post remand VA respiratory examination in October 2019, the examiner opined that he could not confirm a diagnosis of acute or any chronic respiratory conditions, including asthma or its residuals, based on the current medical evidence of record. Notwithstanding these facts, the Veteran maintains that he continues to experience respiratory issues and uses Albuterol MDI prn (inhaler) to help alleviate his symptoms. In light of the Court’s decision in Saunders, the Board finds that another remand is necessary for further evidentiary development of the Veteran's appeal. The United States Court of Appeals (Court) has held that pain in the absence of a presently diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The matter is REMANDED for the following action: 1. Give the Veteran an opportunity to provide a statement of examples regarding whether and/or how his respiratory symptoms have caused functional impairment that has impacted his earning capacity. 2. Obtain any outstanding VA and private treatment records and associate them with the Veteran's claims file. 3. After the above development has been completed and all records have been associated with the claims file, the Veteran must be afforded a new VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed respiratory disability. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The entire claims folder, including a copy of this remand should be made available and should be reviewed by the examiner. Following a complete review of the record, the examiner is asked to provide the following responses: (a) Confirm if the Veteran has a current diagnosis of a respiratory disability. (b) If not, state whether the Veteran’s reported respiratory symptoms result in functional impairment that impacts the Veteran’s earning capacity. (c) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's respiratory disability or respiratory symptoms that cause functional impairment in his earning capacity were caused by the Veteran's active military service, including his conceded exposure to environmental hazards, including burn pits, while serving in the Persian Gulf War. The examiner should note that lay statements are competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.