Citation Nr: 21032053 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-20 014 DATE: May 25, 2021 REMANDED Service connection for asthma, to include as secondary to service-connected allergic rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1994 to September 1997. She testified before the undersigned Veterans Law Judge during an April 2018 videoconference hearing and a transcript of that proceeding is of record. This appeal was initially before the Board of Veterans Appeals (Board) in July 2018, wherein the Board, in part, remanded the claims for service connection for a mental health disability and for asthma, and for an increased rating for migraines. Subsequent to the 2018 Board remand development, in an April 2020 rating decision, the Veteran's rating for her migraines was increased to 50 percent, effective October 26, 2010 and service connection for anxiety disorder was granted with a 50 percent evaluation, effective March 28, 2011. These grants are considered a total grant of the benefits sought. First, the migraines rating is the highest evaluation allowed under the Schedule for Rating disabilities and the assigned effective date is the date upon which the claim for migraines was received. As for the anxiety disorder, an award of service connection is a full grant of the benefit sought, and she did not express any disagreement with the rating or effective date assigned. As such, these issues are no longer on appeal before the Board. As for the Veteran's claim for service connection for asthma, the claim was remanded namely to obtain a medical opinion that adequately considers the theory of aggravation. Unfortunately, the Board finds the RO did not comply with the 2018 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the Board notes that the file contains updated VA medical records as well as private medical records submitted by the Veteran directly to the Board following the supplemental statement of the case. Although the evidence has not yet been considered by the Agency of Original Jurisdiction (AOJ), because the Veteran filed her substantive appeal (Form 9) after February 2013, waiver of the private records is presumed. Next, as noted, an adequate medical opinion regarding the etiology of the Veteran's asthma specifically considering the theory of aggravation due to her service-connected allergic rhinitis was requested as the prior medical opinion of record from June 2011 did not consider aggravation. Unfortunately, the resulting September 2019 opinion failed to include a sufficiently detailed or adequate rationale. Instead, the VA examiner simply noted the current severity is not greater than the baseline and therefore the current asthma is not the same as or the result of the event shown in service without discussing or analyzing the facts based on this specific Veteran. Therefore, the Board finds that the 2019 addendum opinion remains insufficient upon which to decide the claim and is merely conclusory rather than probative. Further, the Board specifically stated in the remand directives that the examiner must address the Veteran's 2018 Board hearing testimony where she asserted that allergic rhinitis symptoms generally trigger her asthma attacks; as well as the January 2011 VA examiner's citation to medical literature showing that these respiratory conditions often occur together and coexistence of allergic rhinitis and asthma is well-documented. However, the examiner failed to provide an adequate discussion of either, but rather simply repeated the medical history that was noted in the 2011 examination without any consideration of the Veteran's asthma and medical history since, and again failed to provide an adequate rationale or supporting analysis. Finally, the remand directives specifically requested the examiner opine whether it is as likely as not the asthma was aggravated by the allergic rhinitis, and that the examiner was advised that aggravation was any increase in disability of the non-service-connected disability. The examiner did not provide a discussion as to whether this specific Veteran had aggravation of her asthma, but rather only considered her baseline from service (which was based on her allergic rhinitis). As such, while the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law. The matter is again remanded to obtain an adequate opinion and to ensure compliance with the Board's previous remand directives. Stegall, 11 Vet. App. at 271; Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matter is REMANDED for the following action: Forward the claims file and a copy of this REMAND to a VA examiner OTHER THAN the 2019 examiner to obtain an addendum opinion regarding the Veteran's asthma. The examiner must note his or her review of the complete claims file, including this remand. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, the examiner must provide an opinion as to whether: It is at least as likely as not (50 percent or greater probability) that the Veteran's asthma was aggravated by her service-connected allergic rhinitis? The examiner should specifically cite to any evidence that supports this opinion. The examiner is advised that a "permanent" worsening or increase in severity of the currently diagnosed asthma is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. As part of the rationale, the examiner must specifically address and discuss: Veteran's 2018 Board hearing testimony asserting that allergic rhinitis symptoms generally trigger her asthma attacks; medical literature cited in 2011 VA causation opinion showing coexistence of allergic rhinitis and asthma is well-documented; that they are both "inflammatory airways disease" and "current literature suggests they are perhaps better described as a manifestation of airway inflammation involving one common airway"; The 2019 VA examination where she reported that her asthma began in 1995/1996 when she had difficulty breathing, and had wheezing, coughing swollen nasal passages. She uses an inhaler as needed, nasal sprays and mometasone daily. She reported periodic difficulty breathing and swollen nasal passages after asthma attacks; September 2014 VA medical note that her history is consistent with a diagnosis of bronchial asthma, with triggers of GERD and seasonal allergies; The January 2000 VA medical record noting she has been treated for her asthma (but this is the earlier date available, but no onset date noted); and During the 2011 examination, she reported having difficulty breathing during service and remembers her asthma beginning sometime after the 1996 trip to Florida after she was diagnosed with allergic rhinitis; and that her symptoms have progressively worsened since onset to include use of inhalers, daily medication, and acute asthma attacks weekly. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.