Citation Nr: 21040760 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 13-19 532 DATE: July 6, 2021 REMANDED The issue of service connection for asthma is remanded. The issue of service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1990 to July 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from the February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Board denied the claims of service connection for asthma and low back disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and through an October 2020 Memorandum Decision, the Court vacated the July 2017 Board decision and remanded the matter to the Board. 1. Service connection for asthma The Veteran contends that he had asthma prior to enlistment that was aggravated by service. The Veteran is currently diagnosed as having asthma. The Veteran's service treatment records show that the Veteran consistently stated that he had, or has had, asthma and sinus problems. Although the Veteran stated in July 1990 that he only had, or has had, sinus problems and not asthma, the Board finds that it is consistent with his statement of "allow[ing his] recruiter" to "downgrade" asthma in order to serve in the United States Marine Corps. VA's duty to assist also includes obtaining a medical examination or opinion when such is necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim of service connection for asthma, the statutory duty to assist has been triggered, as the Veteran contended that his current asthma is aggravated by his service. He has not yet been afforded an examination for this claim. As to the private medical opinion from August 2016 suggesting a "worsening of his condition," the Board finds it to be inadequate. Although the August 2016 private practitioner opined that the Veteran's "could have directly responsible [sic] for worsening of his condition," the Board finds that it is inadequate as the opinion did not state whether it was at least as likely as not that the Veteran's asthma was worsened by service. The private practitioner only stated that there was a possibility of the Veteran's service aggravating his pre-existing asthma. The private practitioner also did not support his opinion with rationale, including a discussion of the baseline of the Veteran's asthma to which his current condition may be compared to. As the Board is not competent to render its own medical opinion, favorable or unfavorable, the opinion of a medical professional is needed to adjudicate the claim of service connection for asthma, to include aggravation caused by service. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (Board may not make independent medical assessments). The Board thus finds that the Veteran should be afforded an appropriate examination with respect to his service connection claims for asthma. 2. Service connection for a low back disorder The Veteran contends that he has lower back pain that stemmed from time spent as a Marine according to his chiropractor who treated him in 2006. The Veteran is currently diagnosed as having "early degenerative changes" and "segmental and somatic dysfunction" of the lumbar and thoracic regions that have "progressed moderately since 2004." Again, the Board refers to the criteria above regarding VA's duty to assist also includes obtaining a medical examination or opinion when such is necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the claim of service connection for a low back disorder, the statutory duty to assist has been triggered, as the Veteran contended that his current low back disability is causally related to his service. He has not yet been afforded an examination for this claim. The Board thus finds that the Veteran should be afforded an appropriate examination with respect to his service connection claims for a low back disability. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by a VA clinician to determine the nature and etiology of asthma. The clinician should review the virtual file. The clinician is to address whether it is at least as likely as not (50 percent or greater probability) that asthma was caused or aggravated by service and/or a service-connected disability. The examiner must evaluate the Veteran's hearing testimony that he had asthma since childhood that was intentionally concealed at enlistment as a sinus disorder and his testimony that he self-treated attacks during rigorous Marine exercises. The examiner is advised that aggravation means any increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered, to include the August 2016 private medical opinion. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by a VA examiner to determine the nature and etiology of a low back disability. The examiner should review the virtual file. The examiner is to address the following: (a.) State whether a low back disability is currently present. If the examiner disagrees with a diagnosis already established in the medical records, to include the September 2016 private treatment records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that a low back disability manifested during or is otherwise related to the Veteran's period of active service. Rationales for all opinions are to be provided. All pertinent evidence, including both lay and medical, should be considered. The examiner may not solely rely on the absence of complaints, treatments, or diagnoses in the service treatment records. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun, 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.