Citation Nr: 21069584 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-10 927A DATE: November 18, 2021 REMANDED Entitlement to service connection for a breathing disorder, to include chronic obstructive pulmonary disease (COPD) and asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1964 to March 1966. He also served in the Reserves. This matter was initially before the Board in August 2017, where it was remanded for additional development. Specifically, the Board determined that there are outstanding medical records relevant to the Veteran's claim. The matter returned to the Board in June 2018, where it was remanded for a VA examination. The matter returned to the Board for a third time, where it was again remanded. The Board determined that there was not substantial compliance with the June 2018 remand directives, therefore, the Veteran was afforded another examination. For the reasons discussed below, the matter is remanded as there has not been substantial compliance with the Board directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Entitlement to service connection for a breathing disorder, to include COPD and asthma is remanded. While the Board regrets further delay, the matter must be remanded as the August 2021 VA examination is inadequate for adjudicative purposes. The examiner opined that the Veteran's breathing disorder is not related to service, reasoning that the Veteran does not have a current diagnosis of breathing disorder or COPD. Additionally, the examiner stated the following: "[e]ven though literature shows that cleaning supplies has been shown to cause COPD, there is no evidence that this veteran carries the diagnosis of COPD so it would be less likely than not that the supplies caused his claimed condition." However, the Board notes that the presence of a disability at any time during the claim process, or relatively close thereto, can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Additionally, treatment records submitted from the Veteran indicate that he has a current diagnosis of COPD (stable) and asthma. See September 2021 Private Medical Records. Therefore, the Board finds that a new examination is warranted. The matters are REMANDED for the following action: 1. Obtain from the Veteran his complete treatment records from North Alabama Primary Clinic, including all prescription information. 2. Forward the Veteran's claims file to a qualified examiner for an opinion addressing the nature and etiology of his breathing disorder, to include his diagnosed COPD and asthma. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner must opine as to whether it is at least as likely as not (50 probability or greater) that the Veteran's breathing disorder, to include his diagnosed COPD and asthma, are related to an in-service injury, event, or disease, including any potential chemical exposures. The examiner should consider the following: the Veteran's January 1966 separation report of medical history and medical examination, indicating no breathing problems and good health; a June 2014 lay statement, indicating that the Veteran did not report breathing problems prior to service, but did upon returning from service; April 2017 testimony from the Veteran's spouse that he had breathing problems since they were married in April 1967; the Veteran's April 2017 testimony that his breathing problems began when he had to clean field gear with acid (the examiner should note that the Board finds the Veteran's January 1966 separation report of medical history to be more credible regarding the Veteran's symptomology); the March 2019 VA examiner's opinion, stating the Veteran's COPD is less likely than not related to service, noting "no evidence of working with chemicals or any other environmental agents" during service, but failing to address the Veteran's April 2017 testimony regarding acid exposure; and the August 2021 VA examiner's opinion, noting that "literature shows that cleaning supplies has been shown to cause COPD..."; and private medical records reflecting current diagnoses of COPD and asthma with the Veteran's report of current prescriptions of Albuterol, fluticasone propionate, ipratropium bromide and albuterol sulfate. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.