Citation Nr: 21024826 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 10-04 334 DATE: April 26, 2021 REMANDED Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1976 to March 1977. This matter is on appeal from a June 2009 rating decision. In a January 2016 decision, the Board, in pertinent part, denied service connection for asthma, finding that there was clear and unmistakable evidence showing that asthma existed prior to service and was not aggravated therein, a determination that the presumption of soundness had been rebutted. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (“the Court”). In June 2018, the Court issued a Memorandum Decision that reversed the Board’s January 2016 determination that the presumption of soundness was rebutted, directed that a finding of in-service aggravation of the preexisting asthma be entered, set aside the Boards decision with respect to the asthma claim and remanded the matter to the Board for further proceedings consistent with the decision. In February 2019, the Board remanded this appeal for further development, to specifically include requesting a VA examination and etiological opinion. In a February 2020 decision the Board denied the claim the claim of entitlement to service connection for asthma finding that the Veteran’s preexisting asthma was temporarily aggravated during service and clearly and unmistakably was not aggravated beyond normal progression by the Veteran’s active service. The Veteran appealed the denial of the claim to the Court. In December 2020, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans’ Affairs (the Parties), and vacated the February 2020 Board decision. The Court then remanded the case to the Board for readjudication and disposition consistent with the JMR. In the JMR the Parties found that the Board failed to substantially comply with the Court’s June 2018 remand instructions that asked the Board to address whether the Veteran’s pre-existing asthma was related to an in-service aggravation of the disability. The Court remanded the issue in order for the Board to determine whether the Veteran had active asthma during the appeal period and whether that asthma was caused by the aggravated asthma during service. The Parties stated that the Board failed to make a finding of in-service aggravation of the pre-existing asthma and consider whether the pre-existing asthma was caused by or related to an in-service aggravation of the disability. In light of points raised by the Parties, the Board finds that a remand is required to obtain an appropriate VA medical opinion which addresses whether the Veteran has asthma that is related to his service. The matters are REMANDED for the following action: Obtain an appropriate addendum by an examiner regarding the nature and etiology of the Veteran’s asthma. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of the December 2020 Joint Motion for Remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion(s): a) Please opine as to whether the Veteran has had an active diagnosis of asthma at any time during the period on appeal. b) If the Veteran has had an active diagnosis of asthma at any time during the period on appeal, is it at least as likely as not (50 percent or more probability), that the Veteran’s asthma, that pre-existed his active service, was caused by or related to an in-service aggravation of asthma? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, and complaints concerning the onset of his current asthma, including those made to medical providers. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. (Continued on the next page)   The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.