Citation Nr: 21073106 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-35 969 DATE: December 7, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a respiratory disorder, to include asthma and COPD is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1978 to February 1982. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans' Appeals (Board) from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a virtual before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The record was held open for 60 days thereafter for the Veteran to submit additional evidence. No additional documents were submitted. 1. Entitlement to service connection for a right knee disability is remanded. At the August 2021 hearing, the Veteran reported that, as a truck mechanic, he climbed in and out of trucks, jumping in and out, and climbing over the engine compartment of large trucks. He reported that there were times he twisted is around trying to get into position to work on something. The Veteran testified he began to experience pain, limited movement, and locking of the knee in service. He further testified that these knee issues bothered him all the way through his time in service, that they continued to bother him after separation, and that they have gotten progressively worse over the years. He reports self-medicating the knee with over-the-counter pain reliever, an ice pack, and wrapping. See Hearing Transcript p.3-5. The Veteran has claimed entitlement to service connection for a disability manifested by pain, limited movement, swelling, and instability. The Veteran has not been afforded a VA examination to assist in the development of this claim. The evidence currently of record does not clearly confirm a diagnosis of a qualifying right knee disability, but the Board notes that the Veteran is competent to report observable symptoms, such as pain and some degree of limitation of movement or instability. Additionally, the Board notes that the Veteran's Certificate of Release or Discharge from Active Duty confirms a military occupational specialty (MOS) of power generator wheel vehicle mechanic. Although the evidence is not entirely clear in unequivocally meeting all the criteria to trigger the mandatory duty to assist the Veteran with a VA examination for this issue, the Board finds it reasonable to consider the Veteran's report of twisting and jumping, with pain that began in service and has continued to the present as raising a medical question in this case that should be addressed by a competent medical opinion. Affording the Veteran's claim every reasonable consideration, the Board finds that a remand for a VA examination with medical opinion is warranted to determine whether the Veteran has a qualifying right knee disability that is etiologically linked to his service. If the Veteran is requested to have an x-ray as a part of his VA examination, the Board highly encourages him to do so in order to allow for proper assessment of whether the Veteran has a diagnosed disability such as arthritis. 2. Entitlement to service connection for a respiratory disorder, to include asthma and COPD, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a respiratory disorder, to include asthma and COPD, because no VA examiner has adequately addressed the matter of whether the Veteran has a respiratory disorder that is etiologically related to active duty service. The Veteran contends that he has a respiratory disorder related to his exposure to gas and diesel fumes in service. The Veteran's Certificate of Release or Discharge from Active Duty confirms a military occupational specialty (MOS) of power generator wheel vehicle mechanic and a likelihood of exposure to gas and diesel fumes. The evidence of record confirms that the Veteran has diagnoses of asthma and COPD. See, e.g., October 1985 Service Treatment Record; July 2017 Private Treatment Record. A May 1982 Report of Medical History, three months after the Veteran's separation from service, shows that the Veteran reported a history of asthma, including two emergency room visits within the previous year (during active duty). A June 1988 treatment record shows the Veteran display shortness of breath, difficulty breathing, and a history of asthma since age 4. At the August 2021 hearing, the Veteran testified that his has a history of asthma since approximately age 6, that he currently uses the same medications to treat both his asthma and his COPD, and that, prior to service, his asthma was managed by over-the-counter medication. The Veteran has submitted two articles, "The Asthma-COPD Overlap Syndrome," and "Asthma-COPD Syndrome: What We Know And What We Don't," indicating that the two disorders overlap and that asthma may aggravate COPD. The low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) is met, and a VA medical opinion which addresses this contention must be obtained. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disorder on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records. 2. After the action requested in paragraph 1 above is complete, please schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed right knee disorder. All necessary diagnostic studies and/or tests should be accomplished. The Veteran's file should be made available for review by the examiner. Based on review of the record, the examiner is requested to provide the following opinions: (a.) Please identify any current right knee disability by diagnosis or functional impairment of earning capacity. (b.) As to each disability identified, is it at least as likely as not (a 50% or greater probability) incurred in or otherwise related to his service, to include jumping up and down from large vehicles and twisting his knee while working on engines? 3. After the action requested in paragraph 1 above is complete, please schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his respiratory disorder. All necessary diagnostic studies and/or tests should be accomplished. The Veteran's file should be made available for review by the examiner. Based on review of the record, the examiner is requested to provide the following opinions: (a.) Please identify any current respiratory disorder by diagnosis, to include asthma and COPD. (b.) Did the Veterans asthma clearly and unmistakably (obvious, manifest, undebatable) exist prior to his entrance to service? A June 1988 treatment record shows the Veteran display shortness of breath, difficulty breathing, and a history of asthma since age 4, and at the August 2021 hearing, the Veteran testified that his has a history of asthma since approximately age 6. Please explain. (c.) If the answer to (b) is yes, was the asthma clearly and unmistakably (obvious, manifest, undebatable) not aggravated (i.e., not worsened beyond the natural progression) by service? (d.) As to each disability identified (including the Veteran's asthma, if it is determined that it (1) did not clearly and unmistakably preexist service, or (2) was clearly and unmistakably not aggravated by service), whether it at least as likely as not (a 50% or greater probability) was it incurred in or otherwise related to his service, to include as due to exposure to gas and diesel fumes in service? If it is determined that the Veteran's asthma is due to or aggravated by his active-duty service, please opine as to: (e.) Whether the Veteran has a respiratory disorder (including COPD) that is at least at likely as not (a 50% or greater probability) related to the Veteran's asthma. (f.) Whether the Veteran has a respiratory disorder (including COPD) that is at least at likely as not (a 50% or greater probability) is aggravated (worsened) by any the Veteran's asthma? If so, please provide the baseline disability level (prior to aggravation). The examiner is requested to consider and address, as appropriate, "The Asthma-COPD Overlap Syndrome," and "Asthma-COPD Syndrome: What We Know And What We Don't," indicating that the two disorders overlap and that asthma may aggravate COPD. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O. Halpern 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.