Citation Nr: 21027806
Decision Date: 05/06/21	Archive Date: 05/06/21

DOCKET NO. 13-10 311
DATE: May 6, 2021

REMANDED

Entitlement to an initial compensable rating for chronic bronchitis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1965 to April 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Entitlement to an initial compensable rating for chronic bronchitis.

The Veteran seeks a compensable rating for his chronic bronchitis.  While the Board regrets further delay, it finds that a remand is warranted for additional development.

First, there may be outstanding, relevant private treatment records.  An October 2017 private treatment record notes that the Veteran's primary care physician is Dr. T. and indicated that the Veteran saw this provider within the prior three weeks for his bronchitis.  While some records from Dr. T. are of record, the most recent records are from November 2015.  Thus, there may be more recent, outstanding, relevant records.  Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records.

Moreover, in a March 2019 correspondence, the Veteran essentially contended that his bronchitis has inactive and active phases and that his rating is based on his functioning during an inactive phase, which does not accurately reflect the level of his disability.  

In Ardison v. Brown, the Court of Veterans Appeals (Court) held that where there is a history of remission and recurrence of a condition, the duty to assist encompasses the obligation to evaluate a condition during an active, rather than an inactive, phase. 6 Vet. App. 405 (1994).  However, in Voerth v. West, the Court clarified that an examination during an active phase is not necessary where the active phase only lasts a few days rather than weeks or months. 13 Vet. App. 117 (1999).

The evidence of record shows that the Veteran experiences frequent and recurrent bouts of bronchitis, and while it is unclear how long these bouts of bronchitis last, an October 2017 private treatment record indicates that an episode can last for at least three weeks.  Thus, applying Ardison and Voerth to the present case, the Board finds that an examination, to the extent feasible, should be conducted during an active phase of the Veteran's bronchitis.   

The matters are REMANDED for the following action:

1.  Ask the Veteran to complete a VA Form 21-4142 for Dr. T.  Make two requests for the authorized records from Dr. T. since November 2015, unless it is clear after the first request that a second request would be futile.

2.  Schedule the Veteran for an examination to determine the current severity of his service-connected bronchitis. To the extent possible, the Veteran should be scheduled for a respiratory examination during an active period/flare-up of his service-connected bronchitis.  The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria.

The examiner should also comment on functional impairment caused by the Veteran's bronchitis.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Mortimer, 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.