Citation Nr: 21064472 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-53 579 DATE: October 20, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. Entitlement to a total disability based rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person is remanded. REASONS FOR REMAND The Veteran had active military service from October 1974 to February 1975, and from July 1976 to March 1979, with additional service in the National Guard and Army Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2019 decision, when service connection was denied for a respiratory disability; the decision also denied a claim of SMC. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Order, the Court issued a memorandum decision dismissing the June 2019 Board decision and remanded the case to the Board for action consistent with the Memorandum decision. The Board remanded the case for further development in August 2021. The case has since been returned to the Board for appellate review. In the August 2021 BVA remand, the Board directed the regional office to obtain an addendum opinion from an appropriate clinician regarding the Veteran's respiratory disability. To date, the record does not reflect that the addendum opinion has been obtained. Therefore, the development conducted does not adequately comply with the August 2021 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Further, the Veteran's attorney has requested that VA provide information regarding the qualifications of all examiners who have performed a compensation and pension examination on the Veteran. The Board notes that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. Francway v. Wilkie, 9440 F.3d 1304 (Fed. Cir. 2019). In this case, the Veteran has received compensation and pension examinations for his respiratory disability, and SMC claims. Additionally, multiple examiners have discussed the impact of other disabilities on the Veteran's unemployability. While the Veteran's attorney has not made a specific challenge to any individual examiner, any specific challenge is dependent on obtaining and reviewing the qualifications of the examiners. Accordingly, on remand, appropriate actions must be undertaken in order to obtain the qualifications of the VA examiners to enable the Veteran to flesh out any specific allegation. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. An addendum opinion should be obtained for the claimed respiratory disability in accordance with the August 2021 remand directives. Specifically, an addendum opinion should be obtained from an appropriate clinician regarding the Veteran's respiratory disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner must identify all current respiratory disorders and all respiratory disorders present during the pendency of the claim, to include COPD. For each identified respiratory disability, the examiner is asked to provide a response to the following: Is the respiratory disability at least as likely as not (greater than 50 percent probability) related to service, including exposure to asbestos or chemicals while stationed in Korea. Provide a rationale to support the opinion(s).In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. 3. Confirm that the development conducted and the VA examination report comports with this remand, and undertake any other development determined to be warranted, to include providing a copy of any VA examiner's CV and other qualifications to the Veteran and his attorney. 4. Thereafter, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. . ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.