Citation Nr: 21063710 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-39 104 DATE: October 15, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include asthma, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1983. This appeal arises from an October 2015 rating decision by the VA Regional Office (RO), which found no new and material evidence had been submitted to reopen a claim of service connection for residuals of asbestos exposure claimed as asthma. The appeal was previously before the Board in November 2018 and May 2021. In a November 2018 decision, the Board reopened the claim of service connection for asthma and remanded the issue for further development. In May 2021, the Board again remanded the issue concerning service connection for a respiratory disability, to included asthma, for additional development. Entitlement to service connection for a respiratory disability, to include asthma, is remanded. The Veteran contends that he has asthma and residual pulmonary issues secondary to asbestos exposure during his service in the Navy. See November 2015 Notice of Disagreement; July 2015 Veteran's Supplemental Claim for Compensation. This Board remanded this matter twice before to resolve whether the Veteran has a current respiratory disability and, if so, whether such condition is related to service, to include claimed asbestos exposure. The Veteran's service treatment records include a June 1983 separation examination that is negative for any complaints or symptoms of a respiratory disability. The Veteran has been afforded VA examinations in April 2009, September 2019, and June 2021. The June 2021 examiner answered negatively to the question regarding whether the Veteran now has or has ever been diagnosed with a respiratory condition. However, the claims file includes private pulmonary function test results, dated September 3, 2019, showing a pulmonary function diagnosis of moderately severe obstructive airways disease. In contrast, a private chest x-ray report, also dated September 3, 2019, shows no active pulmonary disease. Therefore, the Board finds that clarification is warranted. It is unclear how the private reports are reconciled with one another and whether the Veteran ever had a respiratory disability at any time during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that the current disability requirement for service connection is satisfied if a "claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim"). The VA examinations of record do not address the September 2019 private records, and thus, the Board finds remand is warranted to obtain a clarification opinion. The matter is REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from June 2021 to the present. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner (for respiratory disability) to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine and otherwise reconcile the evidence in the record regarding whether the Veteran has or had at any time during the pendency of this appeal a diagnosis related to related to a respiratory disability, to include consideration of moderately severe obstructive airways disease noted in the record, and if so, whether it is at least as likely as not that any such diagnosis: (a) had an onset in service or (b) is otherwise related to service, to include consideration of Veteran's contentions that he has a current respiratory disability due to in-service asbestos exposure. The examiner should consider all medical and lay evidence of record, to include the September 9, 2019, private treatment records, i.e., chest x-ray showing no active pulmonary disease and pulmonary function testing showing moderately severe obstructive airways disease. The examiner should provide complete rationale for any conclusions made. (Continued on the next page) If the Veteran and/or his representative's arguments are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject the contentions). 3. After the above development and any other development deemed necessary is completed, readjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Santiago, 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.