Citation Nr: 21004585 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-41 814 DATE: January 27, 2021 REMANDED Entitlement to a rating in excess of 30 percent for exercise induced asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2001 to February 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In May 2019, the Board remanded the Veteran’s claim. Entitlement to a rating in excess of 30 percent for exercised induced asthma. The Veteran contends that her asthma requires daily medications and trips to VA Medical Center, including during spring and fall flares of the condition. See VA 21-4138 Statement In Support of Claim (November 2019). She stated that her medications have to be adjusted and reevaluated all the time. Id. She reported treatment with antibiotics and several rounds of prednisone. See Correspondence (January 2020). She stated that she does not see doctors for her exacerbations and instead increases her medications, because of family obligations and more recently due to COVID. See Correspondence (November 2020). The Board remanded the appeal in May 2019. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has not been substantial compliance with the Board’s prior remand directives insofar as a medical opinion has not been provided addressing whether the medications taken during the appeal period show at any point that (a) asthma required treatment with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; or (b) asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. See BVA Decision (May 2019). It is noted that if (a) is shown then a 60 percent rating is warranted; and if (b) is shown then a 100 percent rating is warranted. 38 C.F.R. § 4.97, Diagnostic Code 6602. The March 2020 VA contract medical opinion with a May 2020 addendum provided an incomplete answer to these questions as they did not mention the documented prescription and use of prednisone, which is an oral corticosteroid. The May 2020 VA contract addendum instead provided that there was no “documentation of monthly visits for asthma exacerbation or prescriptions for prednisone.” See C&P Exam (May 2020). The Veteran’s VA treatment records and private treatment record indicate prednisone use including for exacerbations of asthma. See CAPRI (June 2020) (December 2016 and July 2017); Medical Treatment Record - Non-Government Facility (January 2017) (November 2016); Medical Treatment Record - Non-Government Facility (November 2019) (July 2017). Private treatment records also show prescription for asthmanex, a steroid. See Medical Treatment Record - Non-Government Facility (November 2019) (January 2017). These prescriptions were not addressed during the March 2020 VA contract examination and subsequent May 2020 addendum. It is unclear why the opinion did not address the Veteran’s use of prednisone as well as other treatment contained in her medical records. Additionally, the opinion was unclear as to the number of asthma attacks, as it indicated that the Veteran experienced asthma attacks, but also stated that the Veteran had 0 asthma attacks in the last 12 months. See C&P Exam (March 2020). Lastly, during the March 2020 VA contract examination, the examiner provided that the Veteran needed to follow up with her primary care provider “regarding a life threatening finding in this examination. The findings were described as: RLL broncho-pneumonia.” Id. It is unclear whether the Veteran’s condition at the time of her March 2020 examination altered medical findings at that time. Given the above, remand is required to comply with the Board’s prior remand directives. In this regard, another opinion must be obtained. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2020 to the Present. 2. Obtain an addendum medical opinion from an appropriate clinician to address expressly whether, at any time since May 24, 2012, the evidence reflects that the Veteran’s service-connected asthma (1) required treatment with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; or (2) requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. In doing so, clearly identify (a) the specific time period(s) of each medication taken for her asthma; (b) the dates of use; (c) whether it was a systemic (oral or parenteral) corticosteroids or an immune-suppressive medication or neither. An in-person examination or telephone interview is not required unless deemed necessary by the clinician. NOTE: “Immunosuppressive medication” is not defined in the rating criteria. Medical dictionaries generally define “immunosuppressant or immunosuppressive” therapy as “an agent capable of suppressing immune responses.” See e.g., Dorland’s Illustrated Medical Dictionary 915 (32nd ed. 2012). “Systemic” is defined as pertaining to or affecting the body as a whole. Id. at1865. 3. Readjudicate. Consider that at present DC 6602 is omitted from the 38 C.F.R. § 4.96(d)(4) list of Diagnostic Codes for application of subpart (d) and, although this appears overwhelmingly incongruous with the rating of other respiratory disorders that also consider PFT results in evaluating the severity of pulmonary disorders, the regulatory framework does not limit the evaluation of asthma under DC 6602 to that test result that the examiner states most accurately reflects the level of disability. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.