Citation Nr: 21026032 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-08 180 DATE: April 29, 2021 REMANDED Entitlement to service connection for a disability manifested by respiratory symptoms, to include as an undiagnosed illness or due to environmental exposures (burn pits) resulting from service in Southwest Asia during the Persian Gulf War, is remanded. REASONS FOR REMAND The Veteran had multiple periods of active service, to include from July 1992 to August 1993, from December 2004 to January 2006, and from July 2010 to May 2012, with periods of ACDUTRA, including August 13, 2013 through September 25, 2013. His decorations include a Combat Action Badge. In September 2019, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). In April 2020, the Board remanded this appeal for further evidentiary development. The prior Board remand directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to address the nature and etiology of his claimed respiratory condition. On remand, in December 2020, a VA Gulf War general medical examination and a VA respiratory conditions examination were conducted to address this claim. The examiner noted that attempts were made to interview the Veteran telephonically in conjunction with the examinations, due to COVID restrictions. However, the Veteran was not able to be reached despite multiple phone call attempts and voicemails being left with no response. Thus, the examiner relied upon the record in completing the examinations. The April 2020 Board remand had specifically directed the AOJ to schedule the Veteran for an examination and to have the examiner acknowledge the Veteran’s lay reports of his respiratory symptoms and history. Due to COVID restrictions, an in-person examination was not done. Although the examiner indicated that a complete review of the VA e-folder was conducted, he provided no discussion of the Veteran’s lay reports of his symptoms and history made at the September 2019 Board hearing. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. As the RO was unable to comply with the directive of the 2020 Board Remand, the Board has no recourse but to remand this issue again to ensure that the previously requested development is completed. Id. On a final note, as to the indications in the December 2020 VA examination reports that the Veteran did not respond to VA’s attempt to contact him telephonically, the Board hereby notifies the Veteran that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA’s duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As such, the Veteran must make reasonable efforts to assist VA in determining the nature and etiology of his respiratory condition on VA examination, to include responding to telephonic communications by VA and/or reporting for an in-person examination if one is scheduled. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for both a VA respiratory conditions examination and a VA Gulf War general medical examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed respiratory symptoms. Any studies, tests, and evaluations deemed necessary should be performed. The examiner must address the following: (a) Whether the Veteran’s respiratory symptoms can be ascribed to any known clinical diagnosis/es? (b) If a diagnosed disorder(s) is/are established, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any such disorder(s) had its/their onset during the Veteran’s active duty service, or is/are otherwise related to any period of service, to include as due to environmental exposures in Southwest Asia including burn pits. (c) If any of the Veteran’s respiratory symptoms cannot be ascribed to any known clinical diagnosis/es, then specify whether they are an undiagnosed illness or medically unexplained chronic multisymptom illness as established by history, physical examination, and laboratory tests, that have either (i) existed for 6 months or more, or (ii) exhibited intermittent episodes of improvement and worsening over a 6-month period. In providing these opinions, the examiner must address the Veteran’s September 2019 Board testimony regarding his respiratory symptoms and history. 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 diagnoses and opinions. 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/she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19Vet. App.171 (2005). His failure to report for a VA medical examination may impact the determination made. 38C.F.R. §3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12Vet. App.369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.