Citation Nr: 22010102 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 16-39 406 DATE: February 22, 2022 REMANDED Entitlement to an initial rating in excess of 50 percent for the service-connected obstructive sleep apnea (OSA) with asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1985 to January 2004. This matter was previously remanded by the Board of Veterans' Appeals (Board) in October 2019 and May 2021 for further evidentiary development. As an initial matter, the Board notes that the Veteran was granted service connection for asthma (previously rated as reactive airway disease) with a 10 percent evaluation effective June 17, 2009 (Diagnostic Code (DC) 6699-6602). A June 2020 rating decision granted an increased evaluation of 30 percent for asthma (DC 6602) effective May 21, 2013, resulting in staged ratings. During the pendency of this appeal, an October 2021 rating decision granted service-connection for OSA, finding that the condition is proximately due to or the result of the Veteran's service-connected asthma condition. As such, the Regional Office (RO) explained that the regulations involving the respiratory system include specific rules under 38 C.F.R. § 4.96(a) that direct DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Accordingly, the RO evaluated the Veteran's OSA and asthma together, and provided a 50 percent evaluation effective June 17, 2009, the date of claim, under DCs 6602-6847. OSA with Asthma In an August 2020 correspondence, the Veteran asserted entitlement to a 60 percent evaluation for the service-connected asthma, in accordance with 38 C.F.R. § 4.96, 4.97. DC 6602 provides a 60 percent rating where pulmonary function tests are as follows: FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. See 38 C.F.R. § 4.96, 4.97, DC 6602. Accordingly, and in support of his claim, the Veteran provided pharmacy receipts from March 2019, April 2019, and August 2019, which indicate prescriptions for methylprednisolone, an oral corticosteroid. Given this evidence, the May 2021 Board remanded this matter, in part, to obtain any outstanding and relevant VA and private treatment records, specifically pertaining to medical records regarding prescribed corticosteroids. In a May 2021 letter, the RO requested that the Veteran submit a completed VA Form 21-4142 so that the VA could obtain outstanding and relevant private treatment records on his behalf. The Veteran was also notified that he could obtain these records himself. VA then associated outstanding and relevant VA treatment records with the electronic claims folder, and provided the Veteran with another VA respiratory/asthma examination in July 2021. However, the Veteran did not submit a completed VA 21-4142 or submit additional treatment records following the May 2021 VA letter. Subsequently, the RO issued a Supplemental Statement of the Case addressing all newly received evidence. The Board emphasizes that VA's duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Additionally, the May 2021 Board instructed the RO to obtain a VA medical opinion to clarify the current severity of the Veteran's service-connected asthma. Specifically, the examiner was asked to state whether intermittent (at least 3 per year) courses of systemic (oral or parenteral) corticosteroids have been required during any time period on appeal, and indicate the approximate time periods. A July 2021 VA examiner found that the Veteran's condition did not require use of oral or parenteral corticosteroid medications. The Veteran's pulmonary function testing revealed a pre-bronchodilator FEV-1 of 75% predicted and a post-bronchodilator FEV-1 of 76% predicted. His pre-bronchodilator FEV-1/FVC was 83% predicted and his post-bronchodilator FEV-1/FVC was 78% predicted. The examiner provided that, per the Veteran's statements, he does not seek medical care frequently for asthma. On that basis, the examiner opined that it appeared that his asthma has been well controlled. The examiner also stated that upon review of the prior medical reports, including the December 2014 and January 2020 VA examinations, and speaking with the Veteran, it is determined that the Veteran has not used steroids. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In this regard, the Board finds that the July 2021 VA opinion is inadequate. Specifically, the examiner was asked to state whether intermittent (at least 3 per year) courses of systemic corticosteroids have been required during any time period on appeal. However, in providing the negative opinion, the examiner did not discuss the prescriptions for methylprednisolone as evidenced in the August 2020 correspondence. Indeed, the examiner's conclusion that the Veteran reported no use of steroids directly contradicts the Veteran's August 2020 statements. Additionally, the examiner did not discuss the December 2014 or January 2020 VA examinations as instructed in the May 2021 remand. The Board also notes an August 2014 VA treatment report indicating a prescription for methylprednisolone which, at the time, had last been filled in December 2008. As such, the rationale did not discuss the pertinent evidence noted in the record and thus, the opinion is inadequate. Given the above, the Board finds that remand is necessary to obtain a new addendum opinion regarding the severity of the Veteran's asthma condition. Remanding the claim for new opinion would also give the Veteran another opportunity to provide updated VA Forms 21-4142 for private treatment records regarding the prescribed methylprednisolone as evidenced in the August 2020 correspondence. Accordingly, the matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all relevant private treatment providers, specifically those providers identified on the pharmacy receipts in the August 2020 correspondence (A.B.G. and N.T.W.). Make two requests for all previously unobtained authorized records from all identified providers unless it is clear after the first request that a second request would be futile. If no such records exist, document such in the claims file. 2. Once records have been obtained from the Veteran's private treatment providers regarding his prescribed methylprednisolone, obtain an addendum opinion from a VA examiner of appropriate expertise to clarify the severity of the Veteran's service connected OSA with asthma. Specifically, the examiner is asked to state whether intermittent (at least 3 per year) courses of systemic (oral or parenteral) corticosteroids have been required during any time period on appeal, and indicate the approximate time periods. All prior reports should be addressed and/or reconciled as necessary, to include the December 2014 and January 2020 VA examinations indicating no corticosteroid treatments and the August 2020 correspondence from the Veteran, including pharmacy receipts for methylprednisolone. If additional examination is deemed indicated, it should be scheduled in accordance with applicable procedures. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.