Citation Nr: 21024225 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-26 409 DATE: April 22, 2021 REMANDED Service connection for chronic obstructive pulmonary disease (COPD) is remanded. An initial rating greater than 30 percent for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1975 to July 1981, including foreign service in Germany. In April 2018, the Board remanded the increased rating appeal for further development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A virtual hearing was scheduled for October 2020 to address the service connection appeal. A transcript of the resulting proceeding is of record. During the hearing, the Veteran requested the opportunity to provide testimony on the increased rating appeal, as well. Following this proceeding, the two appeals were merged into one appeal stream, as set forth herein. Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of these appeals. First, the Veteran reported private medical treatment for both his COPD and asthma during the October 2020 hearing. As these records may be relevant to these appeals, reasonable efforts to obtain this evidence must be undertaken. In this respect, the Board acknowledges that the Veteran attempted to obtain a medical opinion from his primary care physician following the October 2020 hearing, but was unsuccessful in his efforts. Thus, the requested development is limited to existing records only rather than an additional attempt to secure the identified opinion. Next, the Veteran has not yet undergone a VA examination for his COPD. However, the record contains competent evidence of a current disorder with a possible nexus to service. See, e.g., August 1977 service treatment record (documenting relevant in-service symptoms); March 2011 private examination (diagnosing COPD); October 2020 hearing transcript (testifying as to in-service symptoms and chemical exposures, and raising a secondary theory of entitlement). As such, there is sufficient evidence to warrant a VA opinion on this matter. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Also during the October 2020 hearing, the Veteran reported a worsening of his service-connected asthma following his most recent VA examination in September 2018. See October 2020 hearing transcript, pgs. 13-15. As such, a new examination is warranted to assess the current severity of the Veteran’s disability. The matters are REMANDED for the following actions: 1. Request that the Veteran identify all private providers of medical treatment for his COPD and asthma since service, and provide authorization for release of all identified private medical records to VA. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. If possible, the Veteran should attempt to obtain the records himself. 2. Obtain an opinion addressing the questions below.  If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.   The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.   In particular, the examiner should offer opinions as to the following:   (a.) During the pendency of this appeal, did the Veteran present with distinct diagnoses of COPD and asthma? If not, indicate which diagnosis is the most appropriate in this instance, as supported by a detailed rationale. If so, indicate whether the symptoms of each can be distinguished. (b.) If a distinct diagnosis of COPD is offered, opine as to whether it is at least as likely as not (50 percent probability or more) that it began in service, was caused by service, or is otherwise related to service?  In doing so, the examiner must explicitly address the Veteran’s reports of in-service secondhand smoke exposure; various chemical exposures; and relevant and chronic symptoms, including as identified in a May 2020 buddy statement. (c.) Also if a distinct diagnosis of COPD is offered, opine as to whether it is at least as likely as not (50 percent probability or more) that the disorder was caused or aggravated by the Veteran’s service-connected asthma? In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.   A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran was competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.   3. Schedule the Veteran for a VA examination to assess the current severity of his service-connected asthma. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Code 6602 (or 6604, if the examiner determines that the Veteran’s disability is best classified as COPD rather than asthma, and that two distinct diagnoses are not present). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.