Citation Nr: 21031638 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-10 501 DATE: May 24, 2021 REMANDED Entitlement to a rating in excess of 30 percent for bronchial asthma with chronic obstructive pulmonary disorder (COPD), prior to September 18, 2017, and 60 percent thereafter is remanded. REASONS FOR REMAND The Veteran had active military service from July 1969 to July 1989. A January 2020 Board decision denied entitlement to a rating in excess of 30 percent for bronchial asthma with chronic obstructive pulmonary disease, prior to September 18, 2017. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a December 2020 Joint Motion for Partial Remand, the parties agreed that the Veteran would not challenge the 10 percent rating assigned for hypertension and asked the Court to dismiss the appeal with regard to that issue. The parties agreed that the Board failed in finding that its duty to assist was satisfied regarding entitlement to an increased rating for bronchial asthma with COPD. Specifically, because it failed to address the Veteran's April 2018 argument that the November 2017 VA examination was inadequate for rating purposes due to the failure to provide details on the assessment of tumors and neoplasms marked during the examination. However, to the extent that the Board granted 60 percent for bronchial asthma with COPD effective September 18, 2017, this favorable determination should not be vacated. In a December 2020 Order, CAVC granted the motion and dismissed the appeal as to the issue of entitlement to a rating in excess of 10 percent for hypertension and vacated the January 2020 Board decision in so far as it denied a rating in excess of 30 percent for bronchial asthma with COPD prior to September 18, 2017, and remanded that issue for further consideration. Entitlement to a rating higher than 30 percent for bronchial asthma with COPD prior to September 18, 2017 The Veteran underwent a VA examination for his bronchial asthma with COPD in November 2017. Pursuant to the directives of the Joint Motion for Partial Remand, the January 2020 Board decision improperly relied on the November 2017 VA examination report insofar as the report failed to adequately address the reported tumors and neoplasms affecting the pulmonary system. While tumors and neoplasms were checked, the examiner failed to complete 'Part K' of the report, as required. An addendum retrospective opinion as to the Veteran's degree of impairment, considering whether medical evidence in the claims file for the period on appeal will affect or alter the previous 30 percent evaluation of the Veteran's bronchial asthma with COPD prior to September 18, 2017 is required. See Chotta v. Peake, 22 Vet. App. 80, 84 (2008) (If a disability rating "cannot be awarded based on the available evidence," VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim." Id. at 85; see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated.) The matter is REMANDED for the following action: If possible, return the claims file to the November 2017 examiner for the purpose of obtaining a retrospective addendum opinion as to the severity of the Veteran's bronchial asthma with COPD prior to September 18, 2017, to supplement the November 2017 examination report. Specifically, why "tumors and neoplasm" were checked, but no additional information was provided. If the November 2017 examiner is not available, provide the claims file to another suitable qualified examiner. . J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.