Citation Nr: 21068228 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-08 187 DATE: November 9, 2021 REMANDED Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1968 to April 1969. In July 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In August 2019, the Board denied service connection for asthma. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the issue. In September 2020, the Board remanded the issue of service connection for asthma to obtain an addendum opinion to consider a March 1969 service treatment note and to provide a new etiology opinion on the Veteran's asthma. However, as set forth more fully below, because the June 2021 VA addendum medical opinion lacks the necessary adequacy for adjudication, substantial compliance with the Board's September 2020 remand directives has not yet occurred; accordingly, the Veteran's claim for service connection for asthma must unfortunately be remanded again for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for asthma. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As an initial matter, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the "burden is not on the claimant to show that his disability increased in severity." To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231 (2012). In this case, service treatment records (STRs) indicate that the Veteran's enlistment examination in December 1968 showed a normal evaluation of his chest and lungs, including a normal chest x-ray. Thus, the presumption of soundness attached. With respect to rebutting the presumption of soundness, the only evidence of a pre-existing asthma condition were lay statements by the Veteran that he had a history of asthma. See March 1969 STRs (stating "[o]bservation for asthma, by stated history, not confirmed or documented"); see also April 1969 STRs (noting that during a medical board proceeding, the Veteran noted he had a history of asthma); see also November 2002, December 2016, and April 2019 VA treatment records (reporting that the Veteran had a history of asthma and an asthma diagnosis since childhood). This issue was previously remanded in September 2020 to obtain an addendum opinion to consider a March 1969 service treatment note and to provide a new etiology opinion on the Veteran's asthma. The Board remand instructed the VA examiner to first provide an opinion on whether there is clear and unmistakable evidence the Veteran's asthma preexisted service. Then, if the examiner found the condition preexisted service, the examiner was instructed to provide an opinion on whether there is clear and unmistakable evidence that the asthma was not aggravated by service. Lastly, the examiner was asked to opine as to whether it is at least as likely as not that the Veteran's asthma is related to service, to include exposure to coal and wood furnace stoves. A subsequent VA examination and medical opinion was provided in June 2021; however, it was accompanied by inadequate rationale. During the examination the Veteran stated that during basic training, he started to cough and experienced some wheezing. The Veteran also asserted that he was seen at sick call and diagnosed with asthma. In regard to the etiology of the Veteran's asthma, the VA examiner opined that the Veteran's asthma, which was clearly and unmistakable present prior to service, was not aggravated beyond its natural progression by an in-service injury, event, or illness. In regard to the VA examiner's rationale, the examiner first commented and discussed several STRs, including those listed in the September 2020 Board remand directives. The examiner commented on the Veteran's December 1968 enlistment examination, which showed a normal evaluation of the chest. The examiner then discussed STRs in February 1969, which showed the Veteran was diagnosed with an upper respiratory infection. The examiner noted that there was no additional evidence in the STRs to support that this was a chronic condition. The examiner then noted March 1969 STRs which indicated the Veteran was diagnosed with "[o]bservation for asthma, by stated history, not confirmed or documented," and that April 1969 STRs indicate during a medical board hearing, the Veteran noted he had a history of asthma. The examiner asserted that the Veteran did reportedly develop a cough while in service but that it's unclear when and also that this could have been a symptom of an asthma exacerbation or an upper respiratory infection. In addition, the examiner stated that there is no evidence other than the verbalized history of the Veteran to show that service aggravated his condition. The examiner asserted that there are no treatment complaints or diagnosis of asthma in STRs and that although the Veteran was treated for an upper respiratory infection in February 1969, that diagnosis did not prove to be a chronic condition through his three months in service. The VA examiner also opined that the Veteran's asthma was not directly related to service. The examiner discussed the Veteran's STRs again and also noted that literature states exposure to coal, mine, fire, and smoke exposure can affect asthma control. However, the examiner asserted that since the Veteran's recent pulmonology notes and previous internal medicine notes state that the Veteran had a history of childhood asthma and that the Veteran was not on medication for asthma in service, exposure to coal and wood in service was not a direct cause. The Board finds the June 2021 VA examiner's opinions and rationales inadequate for several reasons. First, the examiner uses the Veteran's lay statements to both, find that his asthma clearly and unmistakably existed prior to service and also to find that his asthma was not clearly and unmistakably aggravated by service. The examiner reported that the STRs in March and April 1969, indicate that the Veteran stated he had a history of asthma since childhood. Additionally, the examiner also noted that there is no evidence other than the verbalized history of the Veteran to show that service aggravated his condition. Hence, the VA examiner used the Veteran's lay statements to determine both favorable and unfavorable findings, hence providing inadequate rationale. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Therefore, a remand is necessary to provide a new etiology opinion on the Veteran's asthma condition to determine if the asthma condition clearly and unmistakably existed prior to service. Second, the Board notes that the VA examiner's rationale for their direct service connection opinion is the same as their rationale for the aggravation of a condition that existed prior to service opinion. The rationale for the direct service connection opinion should be different from the rationale for the opinion for aggravation of a condition that existed prior to service, as both opinions require different elements. Thus, a remand is also necessary to provide a new etiology opinion on the Veteran's asthma condition to determine if the asthma condition is related to service. As the opinions did not provide a complete rationale a further addendum VA medical opinion is necessary. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). In sum, a remand is necessary to clarify the opinion on whether there is clear and unmistakable evidence the Veteran's asthma preexisted service. Then, if the examiner found the condition preexisted service, the examiner should provide an opinion on whether there is clear and unmistakable evidence that the asthma was not aggravated by service. In addition to the VA examiner findings for the first two opinions, they should also provide a separate opinion on whether it is at least as likely as not that the Veteran's asthma is related to service, to include exposure to coal and wood furnace stoves. Although the Board regrets this delay, such a remand is necessary to ensure fair and appropriate adjudication of the Veteran's claim consistent with VA's duties to assist. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the current etiology of the Veteran's asthma condition. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. The examiner should review the entire claims file, including the Veteran's lay statements and all treatment records, including the Veteran's service treatment records. The examiner should provide as opinion as to the following: (a.) Whether there is clear and unmistakable evidence that the Veteran's asthma preexisted service. If the examiner finds the condition preexisted service, then they should determine whether there is clear and unmistakable evidence that the asthma was not aggravated by service. In rendering these opinions, the examiner MUST comment on: i) The February 1969 diagnosis of acute respiratory infection. ii) The April 1969 treatment note that the Veteran "notes asthma." iii) The March and April 1969 notes of "observation for asthma, by stated history, not confirmed or documented L[ine of] D[uty]: Yes." iv) The Veteran's lay reports of asthma in childhood; and v) The Veteran's lay reports that he developed a cough in service. (b.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, then opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's asthma is related to service, to include exposure to coal and wood furnace stoves. If providing an opinion for question (b) then the examiner must presume the Veteran was sound at entrance and answer as if there was no preexisting condition at the time of entrance. A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The entire claims file, including a copy of this REMAND, must be reviewed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.