Citation Nr: 21022320
Decision Date: 04/15/21	Archive Date: 04/15/21

DOCKET NO. 17-22 573
DATE: April 15, 2021

REMANDED

The issue of entitlement to a rating in excess of 50 percent for sleep apnea with asthma and allergic bronchitis is remanded for additional development.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from July 1972 to March 1976 and January 1978 to July 1978.  

This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2019 and July 2020, the Board remanded the claim for further evidentiary development.

Entitlement to a rating in excess of 50 percent for sleep apnea with asthma and allergic bronchitis.

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision.  Id. 

The Board remanded this appeal in July 2020 so that the Agency of Original Jurisdiction (AOJ) could obtain another VA respiratory examination that conducted exercise capacity testing, and then readjudicate the Veteran’s claim for a rating in excess of 50 percent for sleep apnea with asthma and allergic bronchitis.  In October 2020, the AOJ issued a supplemental statement of the case (SSOC) continuing to deny the claim. 

Pursuant to the July 2020 remand, the Veteran underwent a new VA respiratory examination in October 2020.  Although the VA examination report documented the results of pulmonary function tests conducted that same month, the October 2020 VA examination report states that exercise capacity testing was not performed.  Diagnostic Code 6600, under which the Veteran’s bronchitis is rated, provides for an increased disability rating of 60 percent when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit).  Because the October 2020 VA examination did not conduct exercise capacity testing to determine maximum oxygen capacity or consumption, the Board is without meaningful clinical findings responsive to the applicable rating criteria.

If VA provides an examination that examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  By issuing an SSOC without obtaining an adequate VA examination, the AOJ did not substantially comply with the Board’s July 2020 remand order.  See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Thus, the claim of entitlement to a rating in excess of 50 percent for sleep apnea with asthma and allergic bronchitis must again be remanded for necessary further development followed by re-adjudication of the claim by the AOJ. 

The matter is REMANDED for the following action:

1. Provide the Veteran with a new VA respiratory examination to determine the current severity of his service-connected bronchitis.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Pulmonary function tests and EXERCISE CAPACITY TESTING must be performed.  The results of all such testing must be included in the examination report.  Additionally, the examiner is asked to determine whether the Veteran has cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, and whether he requires outpatient oxygen therapy. 

 

 

L.M. YASUI

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Bilstein, 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.