Citation Nr: 21065118 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-35 567A DATE: October 25, 2021 REMANDED Entitlement to an initial disability rating in excess of 30 percent for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to January 1977. He appeals a November 2015 rating decision by the Agency of Original Jurisdiction (AOJ) that granted service connection for asthma, and assigned a 30 percent disability rating, effective February 14, 2013. The Veteran testified at a Board hearing in October 2019. A transcript is of record. Most recently, in July 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. As such, the case has returned to the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. In July 2021, the Board remanded the claim for an examination and opinion where the examiner was to (1) "Provide a full description of the disability and report all signs and symptoms necessary for evaluating this disability under the appropriate rating criteria. For any objective testing result indicating improvement from prior examinations, the examiner should reconcile such finding with the indications of worsening asthma of record;" (2) "Identify all systemic corticosteroids and immunosuppressive medications used, and to the extent possible note the frequency of required use of such medications (and whether any required dosage would be considered high), over 12-month periods since February 2013;" and (3) "Estimate the frequency of visits to a physician for required care of asthma exacerbations over 12-month periods since February 2013." See July 2021 Board remand directives (emphasis added). The Veteran attended an August 2021 VA examination. However, the examiner's report failed to address the three specific points outlined above as required by the prior July 2021 Board remand. Specifically, the Board notes that it appears the Veteran's asthma has slightly improved during the course of the appeal from examination to examination. However, the examiner did not "reconcile such finding with the indications of worsening asthma of record" as directed by the July 2021 Board remand. Additionally, the examiner did not follow the instructions regarding the historical findings from the Veteran since 2013 for both the use of systemic corticosteroids and immunosuppressive medications and frequency of visits to a physician for required care of asthma exacerbations. See August 2021 VA examination report. As such, the Board finds that there has not been substantial compliance with its remand directives and an additional remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his asthma. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 2. After the development requested in #1 above is complete, schedule the Veteran for an examination to determine the severity of his service-connected asthma. The claims file must be made available to the examiner. All necessary tests and studies, to include pulmonary function tests, should be accomplished, and all clinical findings should be reported in detail. Following review of the claims file, an interview with the Veteran, and completion of any testing deemed necessary, the examiner should fully describe the current extent and symptoms associated with the Veteran's service-connected asthma. In so doing, the examiner is asked to: (a.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating this disability under the appropriate rating criteria. For any objective testing result indicating improvement from prior examinations, the examiner should reconcile such finding with the indications of worsening asthma of record. (b.) Identify all systemic corticosteroids and immunosuppressive medications used, and to the extent possible note the frequency of required use of such medications (and whether any required dosage would be considered high), over 12-month periods since February 2013. (c.) Estimate the frequency of visits to a physician for required care of asthma exacerbations over 12-month periods since February 2013. In addressing the above, the examiner should address medical evidence of record, to include all evidence of use of corticosteroids, including prednisone, and immunosuppressive medication, and lay reports of record, to include contentions raised at the October 2019 Board hearing that the asthma has increased in severity, that the Veteran has been on high doses of corticosteroids and immunosuppressant medications, and that he has required such medications since 2012. A clear explanation for all opinions must be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran 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 Katie Poe, 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.