Citation Nr: 21006079 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-00 708 DATE: February 3, 2021 REMANDED Service connection for a respiratory disability, claimed as asthma, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1988 to July 1992 with subsequent service in the U.S. Army Reserve. The Veteran testified at a June 2018 Board hearing before a Veterans Law Judge (VLJ). A complete transcript is of record. This appeal was previously before the Board in July 2018 and most recently in June 2020. The July 2018 Board decision remanded the claim for additional development, to include obtaining a medical opinion regarding the threshold issue of the presumption of soundness. Specifically, the examiner was asked to opine as to whether there was clear and unmistakable evidence that any preexisting respiratory disability was not aggravated during the Veteran’s active duty service, or was there clear and unmistakable evidence that any increase was due to the natural progress. The Veteran was afforded a VA examination in June 2019, which addressed the July 2018 Board remand directives. However, the June 2020 Board decision found that the June 2019 VA examiner had failed to use the correct evidentiary standard in providing their opinion; the examiner did not specifically opine that the Veteran’s asthma condition was clearly and unmistakably “not” aggravated by service. The Board remanded to obtain an addendum opinion seeking to determine whether there was clear and unmistakable evidence that the Veteran’s preexisting asthma was not aggravated by his active duty service. An addendum opinion was provided in August 2020, which purported to address the concerns of the June 2020 Board remand. However, the examiner once again failed to use the correct evidentiary standard in providing their opinion. The examiner reported that the service treatment records (STRs) did not provide clear and unmistakable evidence supporting aggravation of the claimed condition. Here, the examiner provided an opinion that the STRs did not show aggravation. However, the question is not whether there was clear and unmistakable evidence of aggravation; the question is whether there was clear and unmistakable evidence that the Veteran’s preexisting asthma was not aggravated by his active duty service. As such, although the requested development was performed, it was not done so in substantial compliance with the Board’s June 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for a respiratory disability, claimed as asthma, is remanded. The Veteran asserts that his recurring breathing problems are due to his active duty service. The Veteran’s service treatment records (STRs) from enlistment show a history of hay fever and allergies. The July 1987 Report of Medical History shows that the Veteran reported a history of asthma since age 13. An October 1990 treatment record shows a notation of allergies. It also contains notes of hay fever. A Screening Note of Acute Medical Care shows that the Veteran had complained of asthma for five days and was seen by the allergy clinic. See STR dated November 20, 1991. The treatment records also show that the lungs were clear to auscultation (CTA) bilaterally. Id. A more recent May 1997 Report of Medical Examination disclosed a clinically normal examination of the lungs and chest, and nose, throat, and sinuses. In the related Report of Medical History, the Veteran indicated “don’t know” under asthma. The Veteran was afforded a VA examination in December 2010. The examiner opined that the Veteran’s current condition of asthma was not caused by or a result of illness that was diagnosed and treated during service. The VA examiner stated that there is no evidence in the STRs of significant treatment for asthma and there is no new pertinent information since the prior final denial. The examiner noted that the Veteran was seen intermittently for allergic rhinitis reported to have an asthma component and would benefit from an inhaler. The examiner also noted that the Veteran occasionally used an inhaler and had sought physical treatment twice a year through emergency room visits. The examiner concluded that it was not clear at the time that the Veteran had chronic asthma and therefore there was no evidence of permanent aggravation of a pre-existing condition. The Veteran testified at the June 2018 hearing regarding his reported history of asthma and its aggravation by service. First, he testified that prior to his entry into the military, his allergies were mainly seasonal. However, by the time he left service, his allergies were fairly constant. By this time, his condition had become much worse and his types of allergies and breathing problems were nothing like what he had upon entry. This was why he applied for benefits immediately upon separation. The Veteran’s representative asserted that the conclusions of the December 2010 VA examiner were unclear because the examiner diagnosed the Veteran with asthma by history, but the VA examiner’s opinion incorrectly stated that it was not clear that the Veteran had chronic asthma as of the date of that examination. The Veteran’s representative asserted that the examination was flawed because the pulmonary function test percentage results clearly showed a decreased effusion, meaning there was restriction to his breathing. The Veteran also testified that in 1998 he had been told by a treating physician in Germany that he had asthma and bronchitis. The Veteran and his representative requested a remand to clarify this inconsistency and review all of the treatment records. The July 2018 Board decision found that the presumption of soundness had not yet been rebutted and remanded the issue for further development. A new VA examination was ordered, and the examiner was asked to determine the nature and etiology of any respiratory disability, to include asthma. The examiner was asked to identify any respiratory disability present at any time since entrance, even if such disorder resolved during the pendency of the appeal; and whether it was clear and unmistakable that any respiratory disability preexisted service. If so, was it clear and unmistakable (obvious, manifest, and undebatable) that any preexisting respiratory disability was not aggravated (i.e., permanently worsened) during the Veteran’s active service or was it clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. If it was not clear and unmistakable that any diagnosed respiratory disability preexisted service and was not aggravated by service, whether it is at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed disorder is related to the Veteran’s active duty service, to include the Veteran’s reported in-service reports of difficulty breathing. The Veteran was afforded a VA examination in June 2019, which attempted to address the July 2018 Board remand directives. The examiner opined that it was clear and unmistakable that the Veteran’s respiratory disability preexisted active service based on the evidence of record. For example: a review of the STRs reflect that on his July 1987 enlistment examination, a history of hay fever and allergies is noted. The July 1987 Report of Medical History reflects that the Veteran reported a history of asthma since age 13. Regarding aggravation, while the June 2019 VA medical opinion stated that there was no evidence to support an increased manifestation of the Veteran’s claimed respiratory condition, there was no actual clear and unmistakable opinion stated by the examiner regarding this issue. Further, the directives and rationale referencing “no increased manifestation” included the wrong standard, the “at least as likely as not” standard. The June 2020 Informal Hearing Presentation (IHP) submitted by the Veteran’s representative reflect several contentions, including that the June 2019 VA examiner did not specifically opine that the Veteran’s asthma condition was clearly and unmistakably “NOT” aggravated by service. Thus, the representative asserts that VA did not fulfill its burden of proof that the condition pre-existed service and was not aggravated thereby. Here, the examiner was requested to describe the increased manifestations of the Veteran’s respiratory disability to include asthma, with the clear and unmistakable evidentiary standard. However, as pointed out by the Veteran’s representative and explained by the June 2020 Board decision, the correct evidentiary standard was not used, and an additional remand was found to be warranted. The June 2020 Board decision found that the evidence supported that the Veteran’s claimed condition pre-existed service, however, the issue was remanded to obtain an addendum opinion that only utilized the correct standard pertaining to whether the pre-existing condition was not aggravated. The Veteran was afforded a VA examination in August 2020. After a review of the Veteran’s claims file, to include the Veteran’s STRs, previous VA examinations, and medical opinions, the examiner found that the evidence of record did not provide clear and unmistakable evidence supporting aggravation of his claimed condition. However, as previously stated, the question is not whether there was clear and unmistakable evidence of aggravation; the question is whether there was clear and unmistakable evidence that the Veteran’s preexisting asthma was not aggravated by his active duty service. Here, although there was a note of a history of hay fever in the Veteran’s entrance examination, he was not reported to have asthma. As such, the Veteran is entitled to a presumption of soundness because asthma was not “noted” on his entrance examination. To rebut the presumption of soundness, VA must show by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. 38 U.S.C. § 1153. The Veteran’s asthma was found to have preexisted service by clear and unmistakable evidence by the June 2019 VA examiner. However, the presumption of soundness has not yet been rebutted because the secondary question, whether the asthma was not aggravated by his active duty service has not yet been adequately answered by any medical professional of record. The Board regrets that the Veteran’s appeal will be further delayed; however, another remand is necessary for an addendum medical opinion that utilizes the correct evidentiary standard, in regard to the question of aggravation. The claims file should be returned to the same examiner who authored the August 2020 addendum, or if that examiner is not available, to a similarly qualified examiner. The examiner is asked to opine as to whether there was clear and unmistakable evidence that the Veteran’s preexisting asthma was not aggravated by his active duty service. Accordingly, the claim of service connection for asthma must be remanded. The matter is REMANDED for the following actions: 1. Return the claims file to the VA examiner who had authored the August 2020 medical opinion (or if that examiner is not available, to a similarly qualified examiner) for the purpose of obtaining a more responsive addendum medical opinion. The Veteran’s claims file, to include the Veteran’s STRs, statements, testimony, and post-service treatment records, must be reviewed by the examiner. First, please note that there is of record an opinion that the Veteran had a respiratory disability upon entry into service that clearly and unmistakably pre-existed the Veteran’s active service. After reviewing the claims file, the examiner should answer the following questions: whether there was clear and unmistakable evidence that the Veteran’s pre-existing respiratory disability was not aggravated by the Veteran’s active duty service, or is it clear and unmistakable (obvious, manifest, and undebatable) that any increase found in service was due to the natural progress of the pre-existing disability. A rationale for the opinion must be provided. The Board acknowledges that the pertinent question is very specific, technical, and somewhat confusing. However, the Board seeks a very specific answer to the question because it is essential to this Veteran’s claim. The examiner is reminded that the question is not whether there was clear and unmistakable evidence of aggravation; the correct question is whether there was clear and unmistakable evidence that the Veteran’s preexisting asthma was not aggravated by his active duty service, and if there was an increase found, that such increase was clearly and unmistakably due to the natural progress of the disease. 2. After the development directed above has been completed, and after any additional development deemed necessary, readjudicate the issue on appeal. If a benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.