Citation Nr: 21030984 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-39 214 DATE: May 20, 2021 REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in February 2020 for further development. The Veteran testified at a travel board hearing before the undersigned in December 2019. A transcript is of record. 1. Entitlement to service connection for asthma is remanded. In its February 2020 decision, the Board found that the June 2017 VA examination was inadequate as the examiner used the incorrect standard to determine that the Veteran's asthma preexisted service. Specifically, the examiner determined that the Veteran's asthma preexisted service based on her report of having asthma as a child and one episode in college and did not opine whether the Veteran's clearly and unmistakably preceded her service. In its remand directives, the Board instructed the VA examiner to address whether there was clear and unmistakable evidence that the Veteran had asthma that preexisted her active duty service and, if so, whether there was clear and unmistakable evidence that the preexisting asthma was not aggravated beyond the natural progression by her active duty service. In the March 2020 VA medical opinion, the examiner did not do so. Further, she testified that she first experienced asthma in college (onset), not that she had one episode. As such, a remand is required. See Stegall v. West, 11 Vet. App. 268, 270 (1998). In response to concerns raised in the May 2021 appellate brief, the Veteran reported at the December 2019 hearing that she first experienced asthma in college, which was "right before [she] went into the military." The Veteran is competent to report experiencing asthma, or symptoms thereof. Accordingly, a VA examination to address the [c]lear and [u]nmistakable evidence standard or otherwise refute the presumption of soundness doctrine" is within the purview of the Board's appellate discretion. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. In its February 2020 decision, the Board found that while the March 2013 VA examiner found that Veteran did not have a current ankle disability, subsequent private treatment records showed that the Veteran had been assessed with ankle instability and chronic ankle pain associated with decreased mobility, joint tenderness, limping, swelling, and weakness. Further, in November 2017, she was observed to have "ankle varus." In its remand directives, the Board instructed the RO to schedule the Veteran for a new VA examination of her bilateral ankles and the examiner to, upon examination, list any and all diagnoses related to the Veteran's bilateral ankles or whether any complaints of right and left ankle pain alone resulted in functional impairment of earning capacity. The examiner was also asked to address whether the November 2017 private medical record showing "ankle varus" was a diagnosis or a symptom. In the March 2020 VA medical opinion, the examiner did not conduct a physical examination, address whether ankle pain alone resulted in functional impairment of earning capacity, address whether "ankle varus" as noted in November 2017 was a diagnosis or a symptom, or private treatment records showing that the Veteran had been assessed with ankle instability and chronic ankle pain associated with decreased mobility, joint tenderness, limping, swelling, and weakness. As such, a remand is required. See Stegall v. West, 11 Vet. App. 268, 270 (1998). The matters are REMANDED for the following action: 1. Obtain a supplemental VA opinion to address the nature and etiology of the Veteran's asthma. Only if deemed necessary to provide the requested opinion should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should address the following: a. Is there clear and unmistakable evidence that the Veteran had asthma that preexisted her active duty service? b. If so, is there clear and unmistakable evidence that the Veteran's preexisting asthma was not aggravated beyond the natural progression by her active duty service? c. If the answer to (a) or (b) is no, then is it at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed asthma had its onset in or is otherwise related to service? In providing the opinions requested above, the examiner must consider and discuss the Veteran's statements, to include her December 2019 Board hearing testimony that she first experienced asthma in college before going into the military. Dalton v. Nicholson, 21 Vet. App. 23 (2007). A complete rationale should be given for all opinions and conclusions expressed. 2. Schedule the Veteran for a new VA examination of her bilateral ankles to determine the nature and etiology of any diagnosed disability. Upon examination, the examiner should list any and all diagnoses related to the Veteran's bilateral ankles or whether any complaints of right and left ankle pain alone have resulted in functional impairment of earning capacity. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should address whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed right and/or left ankle disability or right and/or left ankle pain resulting in functional impairment of earning capacity had its onset in or is otherwise related to service. The examiner should address whether "ankle varus" observed in a November 2017 private medical record is a diagnosis or a symptom. The examiner should also address the fact that the Veteran was assessed with ankle instability and ankle pain associated with decreased mobility, joint tenderness, limping, swelling, and weakness, and if such are related to service. In providing the opinions requested above, the examiner must consider statements, to include her December 2019 Board hearing testimony, from the Veteran regarding to the onset and continuity of symptomatology pertaining to her ankles during service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (Continued on the next page) A complete rationale should be given for all opinions and conclusions expressed. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.