Citation Nr: 21065538 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-47 796 DATE: October 26, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran had active naval service from September 1984 to March 1988. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2019, the Board remanded the claim for additional development. The case has since been returned to the Board. The Veteran also appealed the issue of entitlement to service connection for a right ear hearing loss disability. In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for a right ear hearing loss disability, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that matter is no longer in appellate status. The Board finds that additional development is necessary before the remaining claim on appeal is decided. The Veteran maintains that he has a current respiratory disability related to active service. Specifically, he stated that he was treated for pneumonia on multiple occasions during service. He also reported that he worked in freezers and refrigerators and that he was exposed to cold areas inside and hot temperatures outside, which made him get sick. The Veteran's claims file includes a report of his February 1984 enlistment examination and medical history, but the remainder of his service treatment records are unavailable. Under such circumstances, VA has a heightened duty to assist the Veteran in the development of the case, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Veteran's February 1984 enlistment examination indicated that his chest and lungs were normal. On his Report of Medical History, he noted a history of asthma. The examining physician noted that the Veteran had childhood asthma, took medication, and had not had any attacks since age nine. In April 2019, the Board remanded the claim to afford the Veteran with a VA examination and medical opinion. The examiner was requested to identify the Veteran's respiratory disorder or disorders and to state whether any diagnosed disorder clearly and unmistakably predated entry to service. Regarding any disabilities that did not preexist service, the examiner was requested to provide an opinion as whether the disability was incurred in or aggravated by service. A VA examination was conducted in January 2020. The examiner diagnosed the Veteran with asthma and opined that the claimed condition was less likely than not related to service. The examiner noted that the medical records were silent for asthma or breathing problems during service and did not support a nexus. The examiner also noted that temporary aggravation was plausible but that there were no treatment records indicating medical attention for asthma during service. The Board finds the examiner's opinions inadequate as they appear to rely solely on the absence of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). This is particularly problematic in a case such as this, where the Veteran's service treatment records are unavailable. Therefore, a remand is necessary for an additional VA examination and medical opinion. In addition, the January 2020 VA examination report failed to address other respiratory diagnoses made during the pendency of the claim. VA treatment records show treatment for bronchitis, sinusitis, pneumonia, and allergic rhinitis. Those diagnoses should also be addressed. The matters are REMANDED for the following action: 1. Obtain any pertinent, outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed respiratory disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify any chronic respiratory disability present during the pendency of the claim. The examiner should address prior diagnoses, including asthma, bronchitis, sinusitis, pneumonia, and allergic rhinitis. The examiner should provide an opinion as to whether any currently present asthma disability clearly and unmistakably existed prior to service, and if so, whether such disability clearly and unmistakably was NOT aggravated by service. The examiner should note that the Veteran's lay statements alone are not sufficient upon which to base a finding that a disability clearly and unmistakably existed prior to service. For any diagnosed respiratory disability NOT found to clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present respiratory disability manifested during or is etiologically related to the Veteran's active service, to include his reported treatment for pneumonia during service and/or exposure to cold and hot temperatures. A rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issue on appeal. If a 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. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.