Citation Nr: 21012859 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-09 026A DATE: March 5, 2021 REMANDED Entitlement to service connection for a respiratory disability, claimed as allergies and/or asthma, is remanded. Entitlement to service connection for a leg disability, to include as secondary to a service-connected ankle condition, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in October 2016. This matter was previously remanded by the Board in August 2017, November 2019, and September 2020. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection for a respiratory disability, claimed as allergies and/or asthma, is remanded. The September 2020 Board remand directed that the AOJ obtain an opinion regarding the Veteran’s claim of service connection for a respiratory disease. In this regard, the examiner was directed to address the Veteran’s (1) diagnoses of asthma, allergic rhinitis, sinusitis, and chronic obstructive pulmonary disease, and (2) contention that he has suffered respiratory symptoms since service. The Veteran was afforded a VA examination in October 2020 which was amended in November 2020. This VA examiner did not address all of the Veteran’s diagnoses of record and did not address the Veteran’s contentions in providing an opinion. Another VA clinician provided an opinion in December 2020, however, this VA examiner opined that the Veteran never had asthma, despite the multiple diagnoses of asthma in the Veteran’s medical records, did not address the diagnosis of sinusitis, and did not properly address the Veteran’s contentions. Accordingly, remand for a new VA opinion is necessary to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for a leg disability, to include as secondary to a service-connected ankle condition, is remanded. The September 2020 Board remand directed that the AOJ obtain an opinion regarding the Veteran’s claim of service connection for a leg disability. In this regard, the examiner was directed to address, among other things, (1) whether it is at least as likely as not (50 percent or greater probability) that the leg disability began in or is otherwise caused by the Veteran’s active service, and (2) the Veteran’s contention that he has experienced leg pain since service. The Veteran was afforded a VA examination in October 2020. This VA examiner did not provide an opinion regarding direct service connection for the Veteran’s leg disabilities and did not address the Veteran’s contentions in providing an opinion. Accordingly, remand for a new VA opinion is necessary to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Board finds the October 2020 VA examination to be inadequate because the VA examiner did not address whether the Veteran’s service-connected ankle disability aggravated any leg disability. See 38 C.F.R. § 3.310; see also Atencio v. O’Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of “not due to,” “not caused by” and “not related to” are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b)). Therefore, remand is warranted for a new VA opinion. The matters are REMANDED for the following action: 1. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, to determine whether any respiratory disability found during the period on appeal is related to the Veteran’s military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all respiratory disabilities found during the period on appeal, even if now asymptomatic or resolved. In doing so, the VA examiner should address the Veteran’s diagnoses of asthma, allergic rhinitis, seasonal allergies/hay fever, sinusitis, and chronic obstructive pulmonary disease. If the examiner determines that any of the diagnoses of asthma, allergic rhinitis, seasonal allergies/hay fever, sinusitis, and chronic obstructive pulmonary disease was made in error, a detailed rationale should be provided for such finding. For each respiratory disability identified, even if now asymptomatic or resolved, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. In doing so, the examiner must address whether any of the current disabilities are related to the Veteran’s November 1971 in-service notation of a productive cough and sore throat, as well as the Veteran’s contention that he has suffered respiratory symptoms, including allergies and sinusitis, since service. The examiner is advised that he or she may not dismiss the Veteran’s report of symptoms solely on the basis that such complaints were not corroborated by contemporaneous treatment records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), preferably with a clinician who has not previously examined the Veteran. The examiner should identify all leg disabilities found during the period on appeal, even if now asymptomatic or resolved. For each leg disability identified, even if now asymptomatic or resolved, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner is advised that leg pain alone, even without underlying pathology, can qualify as a VA disability if it results in functional loss. Therefore, if no leg disability is diagnosed at any point during the appeal period, but the examiner determines that the Veteran’s current leg pain results in functional loss, then the examiner must opine as to whether the current leg pain is related to the Veteran’s military service. In addition, for each leg disability identified, including leg pain that results in functional loss, even if now asymptomatic or resolved, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s leg disability was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected ankle disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran’s leg disability prior to aggravation by the service-connected ankle disability. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing the opinions, the examiner must address the Veteran’s contention that he has experienced leg pain since service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran’s report of symptoms capable of lay observation solely because they are not recorded in contemporaneous medical records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale.  If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.