Citation Nr: 21068745
Decision Date: 11/12/21	Archive Date: 11/12/21

DOCKET NO. 16-17 857
DATE: November 12, 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 June 1967 to June 1970 with combat in Vietnam.

In October 2019 the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Videoconference Hearing.  A transcript of that proceeding has been prepared and has been associated with the file.

This issue was last before the Board in May 2021 when it was remanded for a VA examination and medical opinion.  Although a medical opinion was provided, the Board finds that it is insufficient for adjudication purposes and a remand is necessary.  Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to service connection for asthma is remanded.

The May 2021 Board Remand directed the agency of original jurisdiction (AOJ) to schedule a VA examination for the Veteran's diagnosed asthma and to provide a direct service connection opinion, taking into account the Veteran's testimony before the undersigned VLJ and the lay and medical evidence of record.  However, the AOJ did not provide the Veteran with a new examination, and instead sent the remand questions to the previous examiner for an addendum opinion.  This is the same examiner who provided an inadequate opinion which necessitated the remand in May 2021.

In the August 2020 medical opinion, the examiner did not address the lay evidence of record and provided a confusing conclusion in which he stated, "Veteran's chronic rhinosinusitis and severe persistent asthma are an intervening interceding illnesses diagnosed many years after active duty service and with no evidence of continuous symptoms of more than 12 weeks while on active duty or immediately within a year of discharge from active duty service."   As a result, the Board remanded the claim and sought an opinion to determine whether the Veteran's diagnosed asthma had its onset while the Veteran served on active duty.  The same examiner then wrote a negative nexus opinion in June 2021.  This time, he determined that the Veteran's seasonal allergies and sinusitis were pre-existing conditions and concluded that as his diagnosis of asthma was in 2004-2006, long after his separation from his service, no nexus was shown.  However, the Board specifically asked for a direct service connection medical opinion which addressed the Veteran's lay evidence, his testimony, and his sister's lay evidence.  To date, this has not been done. 

Accordingly, a remand is required for an examination and opinion regarding the Veteran's claim for service connection for asthma.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his asthma, with an examiner other than the examiner who provided the August 2020 and June 2021 opinions.  The examiner must review the claims file.

The examiner is asked to provide a response to the following:

Is the Veteran's asthma at least as likely as not related to service, including his assertion that his first asthma attack occurred when he was exposed to CS gas in basic training and had continued since then?  

In so doing, the examiner must address the Veteran's sister's and brother's lay statements, as well as the Veteran's testimony in providing a direct service connection nexus opinion.

2. Provide a rationale to support the opinions.  

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Nelson

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.