Citation Nr: 21076948 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-60 571 DATE: December 28, 2021 ORDER Service connection for asthma is granted. REMANDED Service connection for chronic obstructive pulmonary disease (COPD), to include as due to environmental hazard exposures as a result of service in Southwest Asia during the Persian Gulf War, is remanded. FINDING OF FACT The Veteran's asthma onset during his active service and has continued since then. CONCLUSION OF LAW The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1992 to November 1999, including service in the Southwest Asia Theater from July 1995 to September 1995. He had additional service in the Air Force National Guard from February 2001 to October 2003. The current appeal was remanded by the Board of Veterans Appeals (Board) in January 2019 and June 2021 for further evidentiary development. Service Connection Asthma Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established through application of a statutory presumption for chronic diseases when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). A layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). In the current appeal, the Veteran seeks service connection for asthma. His VA treatment records show that he has a current diagnosis of asthma. However, at an August 2021 VA examination, the examiner found no evidence of asthma. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, despite the August 2021 VA examiner's conclusion that the Veteran did not have asthma, the December 2019 VA examiner concluded that the Veteran did indeed have asthma. See December 2019 VA examination. Thus, the current disability element of the claim has been met, and the remaining issue is whether his asthma can be related to any in-service event or whether it onset during service. In this regard, his service treatment records show that in December 1997 he was evaluated by the Medical Evaluation Board (MEB) after seeking treatment for wheezing in June 1995. The MEB evaluating physician diagnosed the Veteran with mild intermittent extrinsic asthma. Then, in February 1998, an occupational medical evaluation determined that, due to his medical condition, the Veteran should not work around excessive dust, smoke, or fumes and should not perform duties requiring the use of a respirator to protect against respiratory irritants. Thus, the evidence of record supports a finding that the Veteran's asthma onset in service and has continued since then. Service connection for asthma is granted. REASONS FOR REMAND Service Connection COPD The Veteran also seeks service connection for COPD. Regrettably, for the reasons set forth below, the Board finds that another remand is required. In June 2021, this matter was remanded to afford the Veteran a new VA examination. Specifically, the June 2021 remand requested opinions as to whether the Veteran's COPD could be related to his service, to include as due to environmental hazard exposure as a result of his service in Southwest Asia during the Persian Gulf War and whether his COPD was proximately due to, or aggravated by, his service-connected sinusitis. The Veteran was afforded a new VA examination in August 2021, at which time the examiner determined that there was no evidence the Veteran had COPD. Thus, no medical opinions addressing the etiology of the Veteran's COPD was provided. As noted above, service connection may still be granted even if the disability has since resolved or the most recent diagnosis is negativeif the evidence shows the presence of a chronic disability any time during the claim process. McClain, 21 Vet. App. at 319. Here, the Veteran's VA medical records confirm his diagnosis of COPD during the appeal period. Therefore, the August 2021 examiner should have considered and addressed the Veteran's previous COPD diagnosis. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is neither optional nor discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). The Board's failure to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Given the above, the Board finds that there has not been substantial compliance with the June 2021 remand. The Board sincerely regrets the delay associated with this additional remand but finds that this remand is necessary to ensure substantial compliance with the Board's prior remand order. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his COPD. His entire electronic claims file must be accessible for review by the VA examiner. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner is asked to: a) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD onset in or is otherwise etiologically related to his service, to include as due to environmental hazard exposures as a result of service in Southwest Asia during the Persian Gulf War? b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD is proximately due to, or the result of, his service-connected sinusitis? c) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD has been aggravated (made worse) beyond its natural progression by his service-connected sinusitis? d) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD is proximately due to, or the result of, his now service-connected asthma? e) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD has been aggravated (made worse) beyond its natural progression by his now service-connected asthma? In responding to the questions above, the examiner is asked to consider and discuss the "Toxic Exposures Announcement" released May 2021 by the Secretary, which notes for veterans who served in Southwest Asia, Afghanistan, and Uzbekistan during the Persian Gulf War that the scientific evidence around toxic exposures, including the report from the National Academies of Science, Engineering, and Medicine, may provide some indication of a relationship between exposure to airborne hazards and chronic respiratory conditions. Also, the examiner should consider and discuss the 2018 UpToDate article Medical Care of the Returning Veteran by MJ Roy and Jeremy Perkins, which may provide helpful information about the links between Gulf War service and medical conditions, including chronic respiratory conditions. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for the VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, Associate Counsel 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.