Citation Nr: 21022033 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-52 714 DATE: April 14, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1962 to May 1963. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2019, at which time it was remanded for further development. The Board notes that, following the April 2019 remand and prior to recertification of the appeal to the Board, the Veteran’s former representative withdrew representation. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Service connection for a respiratory disability The Board’s April 2019 remand included directives to obtain additional VA and private treatment records as well as a VA examination addressing the nature and etiology of the Veteran’s respiratory disability. Specifically, the Board noted that the prior VA examination and opinion were inadequate as the examiner did not consider whether the Veteran’s in-service reports of chronic cough in March, April, and May of 1963 represented the onset of his chronic obstructive pulmonary disease (COPD). Additionally, the Board noted that the examiner failed to consider whether the Veteran’s reported in-service exposure to tear gas aggravated his preexisting asthma and/or caused his COPD. As such, the Board directed the RO to obtain an additional VA examination addressing the nature and etiology of the Veteran’s respiratory disability, to include addressing whether his COPD began in service or is otherwise etiologically related to his service and whether the Veteran’s asthma clearly and unmistakably existed prior to service and, if so, whether his asthma was aggravated by his service. Additional VA treatment records were added in June 2019 and June 2020. The Veteran was sent a request in June 2019 to provide the necessary information and proper release to allow VA to obtain any private treatment records, and the Veteran did not respond to this request. The duty to assist is not a one-way street, and the Veteran has a duty to assist and cooperate with VA in developing evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). With regard to the remand directive to obtain outstanding treatment records, the Board finds substantial compliance with the April 2019 directives. Stegall, 11 Vet. App. at 271. An additional VA examination was obtained in July 2019. In addressing whether the Veteran’s in-service reports of chronic cough and his reports of exposure to tear gas, the examiner provided an opinion that addressed both COPD and asthma rather than directly addressing whether the Veteran’s in-service symptoms and reported exposure could have resulted in, or been symptoms of, his now diagnosed COPD. The examiner noted that symptoms of COPD and asthma often overlap, but did not address whether the Veteran’s in-service reports were manifestations of his COPD. In discussing whether the Veteran’s exposure to tear gas may have been the cause of his COPD, the examiner only offered a short statement stating that tear gas exposure is not a risk factor for the development of COPD. The discussion of whether the Veteran’s COPD was caused by, or otherwise etiologically related to, his service focused on the Veteran’s asthma condition, rendering the opinion confusing and unclear. In addressing whether the Veteran’s asthma preexisted service, the examiner found that the evidence of record in his service treatment records (STRs) and post-service treatment records documented his asthma existed prior to his service. The Veteran himself has reported having asthma since childhood, and the Board agrees with the July 2019 examiner in this regard. The examiner indicated that the Veteran’s asthma was clearly and unmistakably not aggravated by service, as his STRs did not reveal any restrictions in activity level due to asthma. The examiner noted the December 1962 medical profile recommending the Veteran avoid cold exposure but opined, without much explanation, that this was just an acknowledgement of a common asthma trigger. It is not clear, if that is true, why the medical profile was given more than six months into the Veteran’s service. Additionally, the examiner indicated that, although the Veteran reported in May 2017 that his asthma was worsened in service after he was accidentally gassed, asthma symptoms are variable over time and explained that such symptomatology is consistent with the natural history of asthma and could not be attributed to his military service. In the opinion of the Board, this is not “clear and unmistakable” evidence that the Veteran’s asthma was not aggravated by service. The Board finds that the July 2019 VA examination is inadequate. The examiner failed to address adequately whether the Veteran’s COPD onset in service or was manifest in service by his reports of chronic cough, or whether his COPD was otherwise related to his service, to include his reports of in-service tear gas exposure. The examiner’s opinion addressed both asthma and COPD at once and did not adequately respond to the requested opinion, nor did the examiner provide adequate rationale with the provided opinion. Additionally, the examiner failed to explain adequately why or how they reached the conclusion that the Veteran’s asthma was not clearly and unmistakably aggravated by service, despite the medical profile and reports of worsening symptoms in service that have continued since service, with occasional periods of improvement. Given the inadequacies of the July 2019 medical examination, including the examiner’s failure to respond adequately to the requested opinions with corresponding rationale, the Board finds that there has not been substantial compliance with this portion of the April 2019 Board remand directives. As such, a remand is necessary for corrective action, to include obtaining an adequate medical opinion. Stegall, 11 Vet. App. at 271. Additionally, the Board notes that there has been some confusion about the Veteran’s characterization of his service and prior tobacco use. While the April 2019 Board remand found the Veteran to not be credible, an additional review of the claims file and the Veteran’s clarifications received in December 2019 indicates that the Veteran should be deemed credible to report his symptoms and experiences. The Veteran has not held himself out to be a Vietnam Veteran and there is only one indication in a private treatment record of his being a Vietnam Veteran and this appears to be a mistake. As the Veteran noted in his December 2019 statement, his service predated the Vietnam War and he did not report any service in Vietnam in his statements to the Board. Regarding his prior smoking history, the Veteran clarified that his use of a pipe did not involve inhaling the smoke, but more importantly that his use of a pipe began after his service and after his reported onset of COPD symptoms in service. Accordingly, the examiner on remand is advised that the Veteran is report the onset of his symptoms and his reports are credible. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to assess the nature and etiology of any respiratory disability, to include COPD and asthma, the Veteran may have. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder, and an interview with and examination of the Veteran (including any testing or studies deemed necessary), the examiner should: a. Identify/diagnose any respiratory disability(ies) that presently exists or that has existed during the appeal period, to include COPD and asthma. b. Opine whether it is as likely as not (a 50% probability or greater) that any such diagnosed respiratory disability (except any diagnosed asthma) onset in the Veteran’s service or is otherwise etiologically related to such service, to include as caused by his reported exposure to tear gas during basic training and in-service notations of chronic cough. In expressing this opinion, the examiner should address whether the Veteran’s reports of symptoms during service (including chronic cough) were early manifestations of, or otherwise consistent with, the COPD diagnosed in 2012—and should address his reports of continuing symptoms since his active service. c. With regard to any diagnosed asthma, the examiner is asked to opine as to whether there is clear and unmistakable evidence demonstrating that the Veteran’s asthma, which preexisted his service, was aggravated (permanently worsened) during, or is a result of, his active service. If there was aggravation (permanent worsening) of the preexisting disability, the examiner is asked to opine whether there is clear and unmistakable evidence that this aggravation was due to the natural progression of the condition. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.