Citation Nr: 21028913 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 10-40 550A DATE: May 12, 2021 REMANDED Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force from December 1985 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision from a Department of Veterans affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2018, and a transcript of this hearing has been associated with the claims file. This matter was previously before the Board in July 2018, when it was remanded to obtain a VA examination, and June 2019, at which time it was remanded in order to obtain an addendum medical opinion. This matter returned to the Board in February 2020, at which time the Board denied the claim. The Veteran timely filed an appeal to the Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted the parties' joint motion for remand (JMR), vacating the Board's decision and remanding the issue for action consistent with the terms of the JMR. In the JMR, the parties agreed that the Board failed to obtain substantial compliance with the terms of its June 2019 remand, where it had ordered an addendum opinion and instructed that examiner to "address and reconcile" various pieces of evidence, including the Veteran's and his spouse's lay statements, in the opinion. However, the September 2019 examiner opined the Veteran's asthma was less likely than not related to his service due to finding the Veteran's and his spouse's lay statements to be in relative conflict with other evidence of record. The Board then found the April and September 2019 examinations to be the only competent evidence of record and were persuasive. In its June 2019 remand, the Board's instructions that the examiner "address and reconcile" the lay statements with other evidence of record in their opinion indicates the Board found the lay statements of record to be credible. In support of this, the Board also provided no contrary discussion in the June 2019 remand indicating the Veteran's and his spouse's lay statements were not credible. A Veteran's lay statements may implicitly be found to be credible when the Board does not find the statements to be incredible. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The Court has found when the Board has made statements in a prior remand that reasonably lead a claimant to conclude that a factual matter, including credibility of lay statements, has been favorably resolved, fair process requires that the claimant be provided notice and an opportunity to respond prior to a de novo review of that issue by the Board. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). However, the September 2019 medical opinion was premised on the examiner's findings that the lay evidence of record was contradicted by other evidence in the record. By finding the lay statements of record to be contradicted by other evidence of record, the examiner failed to comply with the Board's June 2019 remand instructions. Furthermore, the Board's reliance on the September 2019 opinion meant the Board failed to obtain substantial compliance with the terms of its June 2019 remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Therefore, the parties agreed that the claim must be remanded in order to obtain an addendum opinion that complies with the June 2019 remand and the terms of the JMR. Accordingly, the matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate examiner regarding whether the Veteran's asthma is at least as likely as not related to service, specifically to his in-service bronchitis diagnosed in 1992. The examiner must address and reconcile the findings of the January 2010 VA treatment record indicating that the Veteran had an asthma attack in his 20s; the Veteran's service treatment records; competent and credible lay statements from the Veteran and his spouse reporting that the Veteran first experienced symptoms of asthma during service and has had similar symptoms since that time; Dr. T.W.'s November 2010 treatment letter; the April 2019 VA opinion referencing a 1992 in-service asthma diagnosis; and the September 2019 VA opinion. The examiner is reminded that the Veteran's and his spouse's lay statements regarding the have been determined to be credible by the Board and therefore must be treated as credible. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.