Citation Nr: 21076554 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 97-10 919 DATE: December 27, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 29, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to October 1968 to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal has an extensive history that is incorporated here by reference. Most recently, in August 2021, the Board remanded the appeal. Though the Board regrets further delay, additional remand is necessary. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a respiratory disability is remanded. The Veteran seeks entitlement to service connection for a respiratory disability, to include bronchitis, sinusitis, and chronic obstructive pulmonary disorder (COPD), which he contends was incurred in or caused by his service, to include exposure to asbestos. The Veteran contends that he was exposed to "ambient asbestos" while stationed aboard the USS Cony (DD-508). See Notice Of Disagreement (October 2015). He further states that respiratory issues existed prior to service, worsened due to a severe winter storm while he was at the Great Lakes Naval Training Center, and further worsened while he was serving on the USS Cony (DD-508). The Veteran reported being exposed to elements, which were often inclement, and receiving medication for sinusitis and headaches during service. He states that his condition has gotten progressively worse. See Third Party Correspondence (July 2021). Exposure to asbestos has been conceded. See Board Decision (December 2017). To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Further, remand is necessary to ensure compliance with the Board's prior remand directives. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Remand is necessary to obtain an addendum medical opinion. Here, although an opinion was obtained, it is inadequate because it (1) did not properly address direct service connection, to include whether the Veteran's claimed respiratory conditions are due to exposure to asbestos in service, and (2) did not address the Veteran's lay contentions. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). 2. Entitlement to a TDIU prior to February 29, 2016 is remanded. The issue of TDIU is inextricably intertwined with the claim for increase. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding to help determine the likely etiology of the claimed respiratory disabilities, to include chronic sinusitis, chronic bronchitis, and COPD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptom consistent with the Veteran's claims. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on whether: (a.) It is clear and unmistakable (obvious, manifest, and undebatable) that any currently diagnosed respiratory disability, to include sinusitis, existed prior to the Veteran's entry into active service? In providing this opinion, please discuss the October 1964 Report of Medical History on enlistment where the Veteran reported a history of sinusitis, the examiner's notation on the same document, and the Veteran's July 2021 statement where he states he informed the Navy of his respiratory issues upon entry into active service. If the examiner determines that any respiratory disability clearly and unmistakably existed prior to entry into service, is it clear and unmistakable that this respiratory disability was not aggravated (permanently worsened in severity) during service? Please address the Veteran's statements that his respiratory issues worsened in service, and he received medication for sinusitis and headaches. See Third Party Correspondence (July 2021). (b.) For each respiratory disability not determined to have clearly and unmistakably existed prior to entry into service, is it at least as likely as not (50 percent probability or greater) that such respiratory disability had its onset during active duty service or was otherwise etiologically related to service, to include exposure to asbestos? NOTE (1): The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician must indicate this in the examination report and provide a rationale for that determination. NOTE (2): A negative medical opinion should not be predicated solely on the absence of documented complaints, findings, or diagnoses in service. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to February 26, 2008. 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.