Citation Nr: 21063428 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-19 601 DATE: October 14, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for asthma for the period of from August 4, 2016 to the present is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to April 1967. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and July 2020, the Board remanded this case for a VA examination and VA medical opinion, respectively. Entitlement to an initial rating in excess of 30 percent for asthma for the period of from August 4, 2016 to the present is remanded. This matter was previously remanded in September 2018 and July 2020 for further development to include a VA examination. The case has now returned to the Board for appellate review and, although it again regrets the further delay, the Board finds that additional remand is required. Specifically, after reviewing the evidence of record, the Board that there has not been substantial compliance with the Board's July 2020 remand directives. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, at issue is the nature and severity of the Veteran's asthma disability from August 4, 2016 to the present. In the Board's July 2020 remand, the Board requested a retrospective opinion to determine the current level of severity of the Veteran's asthma disability and explain why there was a wide variation in the Veteran's PFT results from August 4, 2016 onward. The examiner was also asked to provide a detailed history of the Veteran's asthma symptoms from the period of August 4, 2016 to the present. However, the July 2021 VA examiner stated that it would be speculation to comment on the variation of the Veteran's PFT readings because he did not personally oversee the examinations. The examiner also stated that it may either be acute conditions overlying the chronic condition or effort of the Veteran. However, a mere speculation opinion cannot be due to the examiner's own lack of knowledge, as stated by this examiner. See Jones v. Shinseki, 23 Vet. App. 382, 39091 (2010). Additionally, the examiner's explanation that the variations may be due to acute conditions or effort by the Veteran does not express the correct degree of confidence needed for an adequate VA medical opinion. See Hood v. Shinseki, 23 Vet. App. 295, 298 (2009). Accordingly, the Board finds that July 2021 VA medical report is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Lastly, the Board finds that a new medical opinion is necessary because the July 2021 VA examiner stated that the Veteran's nonservice-connected chronic obstructive pulmonary disease (COPD) was predominantly responsible for the need of inhaled medications. However, this examiner failed to differentiate between the signs and symptoms attributable solely to the asthma. Therefore, when it is not possible to separate the effects of a service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, the Board finds that a retrospective opinion is necessary to determine whether the Veteran's symptoms of wheezing, chest pain, dripping nose, and chronic cold are attributable to his asthma disability or his COPD disability. See Private Treatment Records dated August 2016, December 2016, and September 2017 and VA Examinations dated September 2019 and July 2021. Based on the foregoing deficiencies, the Board finds that the July 2020 VA examination is inadequate for adjudicative purposes. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008); see also Stegall, 11 Vet. App. at 268. Accordingly, the Board finds that a new examination is warranted. The VA medical opinion should address the variation in the Veteran's PFT readings in August 2016, December 2016, April 2017, September 2019, and July 2021. The examiner should document the Veteran's report of symptoms from August 4, 2016 to present. See Private Treatment Records dated August 2016, December 2016, and September 2017 and VA Examinations dated September 2019 and July 2021. Lastly, the examiner should determine whether the Veteran's symptoms are attributable to his asthma disability and/or COPD disability and provide supporting rationale for his/her opinion. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his asthma condition. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current nature and severity of his service-connected asthma, as well as to explain the wide variation in the Veteran's PFT readings since August 4, 2016. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's asthma under the rating criteria, noting the frequency and severity of asthma attacks. The examiner is advised to obtain a detailed history of the Veteran's asthma symptoms from the period of August 4, 2016 to the present. The examiner should provide an explanation as to the wide range of differing PFT readings in August 2016, December 2016, April 2017, and September 2019. See Private Treatment Records dated August 2016, December 2016, and September 2017 and VA Examinations dated September 2019 and July 2021. The examiner should distinguish any signs/symptoms of his asthma from signs/symptoms attributable solely to his COPD disability. Specifically, the examiner should address the July 2020 VA examiner's finding that predominantly responsible for the need for inhaled medications. See July 2020 VA Medical Opinion. If it is not possible to distinguish the symptoms without resort to speculation, the examiner should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. If the examiner opines that the Veteran had respiratory symptoms that were distinguishable and due to a non-service-connected disability, please provide a rationale for the opinion. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.