Citation Nr: 21011546 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-59 382 DATE: March 2, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1970 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board for further development in an August 2019 decision. When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Respiratory Disability As part of the August 2019 Board Remand the RO was required to obtain a VA examination for the Veteran’s claimed respiratory issues. The VA examiner was required to offer an opinion on the etiology of the Veteran’s condition and was specifically directed to address: whether it was at least as likely as not (a 50 percent probability or greater) the Veteran’s current respiratory disability was etiologically related to his in-service acute respiratory infection; and whether the Veteran’s pre-service history of rheumatic fever was aggravated during his active duty service, to include as due to his in-service acute respiratory infection. The examiner was instructed to address the Veteran’s competent lay statements. A complete rationale was required from the examiner regarding their opinion, and if unable to provide an opinion the examiner was required to provide a complete explanation for why this was so. While the RO obtained a February 2020 VA examination for the Veteran’s respiratory disability, the Board finds it to be inadequate. In proffering the opinion, the VA examiner did not take into account the Veteran’s competent lay statements regarding the symptoms he experienced from service to present day. Additionally, even though it was required by the Board’s previous remand, the examiner did not offer an etiology opinion regarding whether the Veteran’s history of rheumatic fever was aggravated during his active duty service. The Board finds that the VA examiner did not adequately assess whether the Veteran’s claimed conditions were related to his active duty service. As such, the Board finds that on remand, a new examination and opinion is necessary. The matter is REMANDED for the following action: Obtain an opinion from a qualified examiner with sufficient expertise to address the etiology of the Veteran’s claimed respiratory condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. Following a review of the relevant records and lay statements, the examiner(s) should state whether the Veteran’s claimed respiratory disability at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service, to include whether any current condition is etiologically related to the Veteran’s in-service acute respiratory infection. Additionally, the examiner must also opine on whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s history of rheumatic fever was aggravated during his active duty service, to include as due to the Veteran’s in-service acute respiratory infection. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements and the lay statements of his spouse and children. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. (Continued on the next page) If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.