Citation Nr: 21029091 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 09-29 560 DATE: May 12, 2021 REMANDED Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1983 until September 1991. In October 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been before the Board on several prior occasions. Most recently, in September 2020, the Board remanded the claim for further development to include obtaining an addendum medical opinion. Unfortunately, there has not been substantial compliance with the Board's prior remand directives and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a respiratory condition is remanded. The claim must be remanded because the November 2020 addendum opinion is inadequate. The examiner stated that there is "no convincing evidence that [the] Veteran has any pulmonary condition" and reached a negative nexus opinion. The examiner appears to have impermissibly assessed the credibility of the Veteran's lay statements, his motivations for seeking VA benefits, and his performance during previous clinical testing. The opinion provider also considered that the Veteran was discharged from service due to his behavior and noted the Veteran's mental health diagnosis although the requested opinion was for respiratory illness. The examiner also stated that the Veteran "seems to be more interested in secondary gains from his 'pulmonary condition' rather than giving a valid picture of his physiological status" and that the Veteran "seems unable or unwilling to give a better effort on his evaluation studies." There are no concerns noted from those who administered the Veteran's previous clinical pulmonary testing and the addendum opinion provider did not personally evaluate the Veteran. Additionally, the opinion provider indicated that the pulmonary function test (PFT) performed in 2019 warrants further evaluation of the central and upper airways, including a new PFT study due to a pattern that "could represent and fixed upper airway obstruction." However, no additional evaluation was conducted prior to the examiner concluding, "It is less likely as not that this Veteran has asthma or any other airway condition..." The proffered opinion is inadequate. On remand, the Veteran must be provided with a new VA examination to determine the nature and etiology of any respiratory condition. Additionally, updated VA treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2020 to the present. 2. After completion of the above, schedule the Veteran for a VA examination for his claimed respiratory condition. The examiner must review the claims file. After examination of the Veteran to include any indicated clinical study or testing, the examiner is asked to answer the following: (a) Identify any currently diagnosable respiratory condition. (b) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) that the condition is related to the Veteran's active service, including residuals of pneumonia? In answering this question, the examiner must specifically discuss the January 2019 opinion that the Veteran was diagnosed with asthma All provided opinions must be supported by complete rationale. If the examiner finds that it is impossible to provide a requested opinion without resort to speculation, they should say why that is. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.