Citation Nr: 21065042 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 18-46 663 DATE: October 22, 2021 REMANDED Entitlement to service connection for a respiratory disorder is remanded. REASONS FOR REMAND The Veteran had active service from June 2007 to July 2011. The Agency of Original Jurisdiction (AOJ) initially denied the Veteran's claim for service connection for asthma in an unappealed August 2015 rating decision. The Veteran then filed a claim for dyspnea and pleurisy in September 2016, which the AOJ characterized as a petition to reopen. In a January 2016 rating decision, the AOJ granted the petition to reopen but denied the claim on the merits. After the August 2015 rating decision, VA received additional service personnel and treatment records regarding the Veteran's service, to include legible copies of previously unintelligible records. See November 2020 DPRIS response and June 2021 service treatment records (STRs). Where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided a claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156 (c). Because additional service department records are now included in the record, the finality of the August 2015 rating decision is vitiated by these records and the Veteran is not required to submit new and material evidence before consideration of the claim on a de novo basis. A Board hearing was held in January 2021. A transcript is of record. Since certification of this appeal to the Board, new VA treatment records have been added to the record. Generally, the Board may not consider additional evidence previously unreviewed by the AOJ; however, the Board is remanding the appeal for further development so a waiver by the Veteran is unnecessary. See 38 C.F.R. § 20.1305(c). The Veteran seeks service connection for a respiratory condition, variously claimed as asthma or dyspnea with pleurisy. See May 2015 VA Form 21-526EZ and June 2016 Notice of Disagreement. There are outstanding records. VA medical records added to the claims file in May 2021 indicate the Veteran was receiving respiratory therapy, and that pulmonary functioning testing (PFT) was performed. See March 2021 VA respiratory therapy note. The note stated that PFT results were available in Vista Imaging. However, the Board does not have access to Vista Imaging and the records are otherwise not in the claims file. As these outstanding records bear on the Veteran's claim, a remand is necessary to obtain them. The Veteran was afforded a respiratory examination in August 2018. The examiner noted the Veteran's claim of asthma and listed a diagnosis of asthma. However, the examiner then stated there was no evidence of asthma per the Veteran's PFT results. After noting that in-service PFT results from November 2010 were illegible, the examiner opined that the Veteran's asthma was not related to service, reasoning that there was no evidence of obstructive lung disease per PFT results, and no documented post-service chronicity per her file review. The August 2018 examination report is problematic for several reasons. First, the examiner provided inconsistent findings regarding the existence of the Veteran's claimed asthma, noting a diagnosis of the condition but also concluding that it was not present based on PFT testing. Second, although the examiner noted that November 2010 PFT results were illegible, service treatment records added to the claims file in June 2021 include a legible copy of the November 2010 PFT results. Third, the examiner found that the record contained no evidence of post-service chronicity; however, the Veteran reported experiencing intermittent chest pain with shortness of breath in August 2014. Moreover, the Veteran later testified that she began experiencing respiratory symptoms in service, has had them since service, and had no other intervening causes to account for them. See Board Hearing Tr. at pg. 7. That testimony also indicated that the Veteran experienced her symptoms while exercising. Id. at pg. 3. However, the August 2018 examination report stated that exercise capacity testing had not been performed. For these reasons, a new examination is necessary to account for this new evidence. The matter is REMANDED for the following actions: 1. Obtain any updated relevant VA and/or private treatment records that have not already been received and associate the same with the claims file, to include the March 2021 PFT results located in Vista Imaging. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of her claimed respiratory disorder. The evidentiary record, including a copy of this remand, must be made available to the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. All studies, tests, and evaluations deemed necessary by the examiner should be performed, to include exercise PFT testing/exercise capacity testing. After a thorough review of the record to include all in-service and post-service treatment records and examination of the Veteran, the examiner should identify any respiratory disorders present. For each disorder identified, the examiner should opine whether it is at least as likely as not that the disorder had its onset during service or is otherwise related to service, to include the Veteran's complaints of difficulty breathing and diagnosis of dyspnea in November 2010, and report of mild asthma in February 2011. In rendering any opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above has been completed, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.