Citation Nr: 21013429 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-48 598 DATE: March 9, 2021 REMANDED Entitlement to service connection for asthma is remanded. INTRODUCTION The Veteran served on active duty from August 1975 to September 1975. In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is of record. REASONS FOR REMAND Initially, the Board observes that in September 2015 the Veteran provided an award letter from the Social Security Administration (SSA). However, to date the RO has not obtained the Veteran’s complete SSA records and determination. Pursuant to 38 C.F.R. § 3.159 (c)(2), VA must make as many requests as are necessary to obtain records in the custody of a Federal department or agency. These records may provide probative evidence that would assist in establishing his claim for entitlement to service connection. As such, all indicated development must be effectuated to obtain these records. Next, the Board notes the RO obtained a VA medical opinion in August 2015. At that time, the examiner concluded the Veteran’s current asthma clearly and unmistakably pre-existed his entrance into active duty. However, the Veteran’s April 1975 entrance examination indicates his lungs and chest were assessed as normal on entry into active duty, and the Veteran specifically denied any prior history of asthma at that time. As such, the Board has determined the presumption of soundness attaches to this case, because the Veteran’s service treatment records do not note the presence of asthma at entrance into active duty. The August 2015 VA examiner failed to explain how or why he concluded the Veteran’s disability clearly and unmistakably existed prior to service. Further, during his July 2020 hearing, the Veteran specifically disputed this conclusion. Additionally, the August 2015 VA examiner also found the Veteran’s disability was “not aggravated beyond its natural progression by an in-service event, injury or illness.” In this regard, the examiner failed to state what standard he applied in rendering this determination. In particular, the Board notes there is a rebuttable presumption of soundness unless a condition is noted at entry. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). “Clear and unmistakable” evidence has been defined as the sort of evidence that is “undebatable”, such that reasonable minds could not disagree. See Russell v. Principi, 3 Vet. App. 310 (1992). To adequately address these issues, the Board finds a remand is necessary to obtain a VA examination and medical opinion from a Pulmonology specialist. Accordingly, these matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to specifically include his missing Social Security Administration Records. If any requested records are deemed unavailable, a formal finding of unavailability should be drafted for the record and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Also, afford the Veteran a VA examination by a Pulmonologist to address the etiology of his claimed asthma disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should answer the following questions with respect to the Veteran’s asthma after soliciting all procurable historical facts from the Veteran. a) did the disorder clearly and unmistakably (undebatably) pre-exist the Veteran’s entry into active service? b) if the examiner concludes the Veteran’s asthma did clearly and unmistakably (undebatably) pre-exist the Veteran’s entry into active service, did the disorder clearly and unmistakably undergo no increase in severity during active duty service? and c) if the examiner concludes the current asthma disability did not clearly and unmistakably pre-exist the Veteran’s entry into active service, the examiner is asked to state whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service? The examiner must provide a complete rationale for each proffered opinion. In this regard, the examiner must discuss and consider the Veteran’s competent and credible reports relative to his respiratory manifestations. Additionally, the examiner is asked to state the specific evidence used in forming each opinion. (Continued on the next page)   If the examiner is unable to provide any requested opinions, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must provide a complete explanation as to why this is so. 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 G. Fraser, 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.