Citation Nr: 21067343 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-43 896 DATE: November 4, 2021 REMANDED Entitlement to a compensable rating for subglottic stenosis of larynx is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from February 1962 to February 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a March 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In September 2019, April 2021, and July 2021, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's July 2021 remand directed the RO to obtain outstanding VA treatment records and allow the Veteran the opportunity to provide private treatment records. The Board's remand also instructed the RO to provide the Veteran with an in-person examination to determine the severity of his allergic rhinitis and the etiology of his deviated septum. Unfortunately, remand is again necessary to address deficiencies and further develop the claim and, as such, substantial compliance has not been achieved. Id. at 271. 1. Entitlement to a compensable rating for subglottic stenosis of larynx is remanded. 2. Entitlement to a compensable rating for allergic rhinitis is remanded. The Veteran contends he is entitled to an initial compensable rating for his subglottic stenosis of larynx and allergic rhinitis. Both disabilities are service connected with an effective date of November 25, 2016. The Board's July 2021 remand instructed the RO to provide the Veteran with an in-person VA examination for his subglottic stenosis of the larynx, allergic rhinitis, deviated septum, and COPD. However, an in-person examination was not performed. A July 23, 2021 contact note indicates the Veteran declined both VA examinations and the scheduled exams were cancelled. See C&P Contention Cancellation, 8/19/2021. In such a situation, regulation provides that, when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. Under 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655 (a). Consequently, the Veteran did not attend previously-scheduled VA examinations in connection with his increased rating claims, therefore, the Board may adjudicate the claims based on the evidence of record. However, the Board determined the June 2019 examinations were inadequate to adjudicate the claim, and therefore the Veteran was provided with a May 2021 in-person examination. While the examination was not found to be inadequate, the Board determined it did not fully address the medical evidence of record. The Board's July 2021 remand directed the RO to obtain a medical opinion as to whether the Veteran's deviated septum was proximately due to or aggravated by the Veteran's service-connected allergic rhinitis. The remand also instructed the examiner to opine as to whether the Veteran's COPD is proximately due to or aggravated by the Veteran's subglottic stenosis of the larynx. Where there is insufficient competent medical evidence in the record for the Board to adjudicate a claim, it must remand that claim for further development. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). "[Once] the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one[.]" Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the Veteran did not report for the scheduled examinations, the Board has not yet exhausted the possibility that the necessary medical evidence may be provided by a VA examiner's review of the Veteran's claims file. In any event, the Board does not have sufficient medical evidence to decide the theories of entitlement addressed in the July 2019 remand. As there has not been substantial compliance with the Board's directives, remand is necessary to obtain addendum opinions as addressed below. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Provide the claims file to an appropriate clinician and obtain addendum opinions on the Veteran's allergic rhinitis, deviated nasal septum, subglottic stenosis of the larynx, and COPD. 3. The examiner is asked to provide an opinion as to: (a.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's deviated nasal septum is proximately due to his service-connected allergic rhinitis; (b.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's deviated nasal septum has been aggravated (worsened beyond natural progression) by his service-connected allergic rhinitis. Attention is invited to the May 2021 examination report. 4. The examiner is also asked to provide an opinion as to: (a.) whether the Veteran's subglottic stenosis of the larynx is predominantly responsible for his limitation in pulmonary function; (b.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's COPD is proximately due to his service-connected subglottic stenosis of the larynx; (c.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's COPD has been aggravated (worsened beyond natural progression) by his service-connected subglottic stenosis of the larynx. Attention is invited to the June 2019 examination report on COPD. The examiner is asked to provide the underlying reasons for all opinions expressed and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.