Citation Nr: 21015351 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-27 668 DATE: March 17, 2021 REMANDED Entitlement to service connection for acute respiratory disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1977 to March 1978. In October 2019 the Board remanded the issue of entitlement to service connection for acute respiratory disease for additional evidentiary development and in March 2020 the issue was denied by the Board. The Veteran appealed the March 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the appellant and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated October 16, 2020 granted the motion and remanded the case to the Board. Entitlement to service connection for acute respiratory disease After review of the record, and in light of the October 2020 JMR, the Board finds that an additional VA medical opinion is needed to properly adjudicate this issue on appeal on a direct basis. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The parties agreed that the December 2019 VA medical opinion was inadequate because the examiner relied on an inaccurate factual premise and did not consider the diagnosis of allergic rhinitis noted in VA treatment records dated in September 2016 and August 2017 during the appeal period. The matter is REMANDED for the following actions: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding the Veteran’s claim on appeal for an acute respiratory disease. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: In the October 2020 JMR, the parties agreed that the December 2019 VA medical opinion (that, in part, concluded the findings did not show evidence of ana cute respiratory disease) was inadequate because the examiner relied on an inaccurate factual premise and did not consider the diagnosis of allergic rhinitis noted in VA treatment records dated in September 2016 and August 2017 during the appeal period. VA treatment records in July 2016, September 2016, and August 2017 document the Veteran’s diagnosis of allergic rhinitis. Review of service treatment records show the Veteran’s diagnosis of acute respiratory disease during active service in February 1978 and treatment for 3 days. In the June 2015 VA Form 9, the Veteran reported experiencing symptoms of acute respiratory disease since active service in 1978. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed allergic rhinitis (as noted in September 2016 and August 2017 VA treatment records, even if now resolved) began during active service or is related to an incident of service, to include the documented diagnosis of acute respiratory disease and treatment for 3 days in February 1978 and the Veteran’s lay assertion of continuous symptoms thereafter. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the agency of original jurisdiction (AOJ) must implement corrective procedures. (Continued on the next page)   3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.