Citation Nr: 21021166 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-32 661 DATE: April 12, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include asthma and chronic obstructive pulmonary disease (COPD), is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1974 to November 1983. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In February 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In August 2020, the Board remanded the claim for further development. Entitlement to service connection for a respiratory disability, to include asthma and COPD, is remanded. The Veteran, and his representative, contends that his current respiratory disability is related to in-service respiratory complaints. In this regard, the Veteran maintains that during service he incurred an onset of asthma, which, in turn, developed into COPD, post-service. See Hearing Transcript at 6 (February 2019). The Board finds there has not been substantial compliance with its prior remand, and therefore further remand is required. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that, in August 2020, the claim was remanded for, among other things, a VA examination and medical opinion. First, although a VA medical opinion was obtained in September 2020, the medical opinion, however, is inadequate as the essential rationale for the opinion is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinion concluded that the Veteran’s respiratory disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the opinion noted the absence of documented treatment, spanning decades since service separation. The opinion additionally referenced and quoted service treatment records (STRs) dated in April 1976 and May 1976. In this instance, the opinion is inadequate because it does not provide the Board a reasoned rationale supporting the conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions”). The opinion, first, does not reveal a reasoned medical rationale connecting the cited STRs to the conclusion. Next, the opinion seems to rely, for the most part, on the absence of documented medical treatment records, during and after service, showing complaints or treatment for his respiratory condition. Although the Veteran, as a lay person, is not competent to opine on the etiology of his symptoms or diagnosed respiratory condition, he is, however, competent to report signs and symptoms of his disability. See Barr v. Nicholson, 21 Vet. App. 303. In this regard, the Veteran has testified to experiencing symptoms of a respiratory condition while in service; he additionally testified to continued symptoms and treatment following service, to include the usage of inhalers and Erythromycin. See Hearing Transcript at 5, 8 (February 2019). The opinion, however, does not reveal a rationale or explanation discounting the Veteran’s competent observations; rather, as evidenced in the opinion, the clinician seems to have, mostly, relied on the absence of documented treatment during, and following, service without considering the Veteran’s testimony. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate”). The clinician is not required to accept the Veteran’s theory that his military service caused his current respiratory problems, or that he had symptoms associated with any respiratory disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran’s theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Given the above, the Board may not rely upon the VA medical opinion in its present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. Second, in its August 2020 remand, the Board directed the agency of original jurisdiction to afford the Veteran a VA examination for his respiratory disability. The record, however, does not show that a respiratory examination report was obtained; instead, the September 2020 VA medical opinion reveals that since the opinion on the etiology of the Veteran’s respiratory disability was negative, an examination was not warranted. With regard to this directive, the Board finds that there has not been substantial compliance with its prior remand. Here, the opinion does not reveal an adequate explanation in finding that a negative opinion does not warrant an examination. In this regard, the Board notes that the August 2020 remand examination directive is not structured as a conditional directive. Further, as explained above, the September 2020 VA medical opinion is inadequate for adjudicative purposes. Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Obtain all VA treatment records dated from November 2020 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran’s reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any respiratory disability, to include asthma and COPD. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: (a) Whether any respiratory disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran’s theory that his COPD stems from in-service respiratory complaints, to include those related to asthma. Explain. NOTE (1): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (2): A negative medical opinion may not dismiss the Veteran’s competent report of respiratory symptoms in service and since without providing an explanation as to why. For example, if the Veteran’s reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran’s reports are generally inconsistent with medical knowledge or implausible, explain. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.