Citation Nr: 21061415 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 13-25 056A DATE: October 4, 2021 REMANDED Entitlement to a disability rating in excess of 50 percent for sleep apnea and asthma, to include whether separate ratings for sleep apnea and asthma are appropriate, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 1980 to January 1992 and from April 2001 to January 2010. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In February 2019, the Veteran and his spouse testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there has been substantial compliance with the Board's remand directives and to afford the Veteran every possible consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a disability rating in excess of 50 percent for sleep apnea and asthma, to include whether separate ratings for sleep apnea and asthma are appropriate, is remanded. This case was previously before the Board in July 2015, September 2017, November 2019, and December 2020. On each occasion, it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its July 2015, September 2017, and November 2019 remands, the Board directed the AOJ to obtain private and updated VA treatment records and to afford the Veteran a new VA medical examination and/or opinion. In its most recent, December 2020 remand, the Board found that the AOJ had substantially complied with all previously directed records development, but found that the AOJ had not substantially complied with its remand directives regarding a new VA examination and/or opinion. It directed the AOJ to obtain updated VA treatment records, to obtain the results of pulmonary function testing (PFT) performed in April 2018, which were referenced but not included in the claims file, and to obtain a new VA examination and/or opinion. In April 2021 and July 2021, the AOJ obtained updated VA treatment records. In July 2021, it obtained a new VA opinion. Regarding the Board's remand directive regarding PFT results from April 2018, the AOJ undertook efforts to obtain the reports of all respiratory testing available in the Veteran's VA treatment records in December 2020. The records it obtained, however, did not include the results of the April 2018 PFT. The AOJ then sent the Veteran a letter later that same month asking him to identify and provide an appropriate release for the April 2018 PFT results. He did not respond to that request. An April 2018 VA treatment record clearly notes that PFT results were interpreted, and that the results were available in VA's electronic records database via Vista Imaging. Based on that entry, the results of the April 2018 testing are or should be within VA's constructive possession. Because it is not clear from the record that the AOJ exhausted all reasonable efforts to obtain the results, to include via Vista Imaging, further development is necessary. See Stegall, supra. Updated records of any VA treatment should also be procured. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, to specifically include a copy of the April 2018 PFT results referenced in a clinical entry dated April 12, 2018, as having been scanned into Vista Imaging. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The assistance of the Veterans Health Administration should be sought in electronically accessing the records, if necessary. The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative must be provided notice that includes (i) the identity of the records VA was unable to obtain, (ii) an explanation of the efforts VA made to obtain the records, (iii) a description of any further action VA will take regarding his claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless he submits the records VA was unable to obtain, and (iv) a notice that he is ultimately responsible for providing the evidence." 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.