Citation Nr: 22010564 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 14-38 971A DATE: February 24, 2022 REMANDED Entitlement to service connection for a respiratory disorder, to include as secondary to service-connected sinusitis or rhinitis, and to include as due to in-service asbestos exposure, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1971 to September 1973. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. The hearing transcript is of record. The Board remanded the claim in December 2018 and January 2021 for further development by the RO. The case has been returned to the Board for further appellate action. 1. Entitlement to service connection for a respiratory disorder, to include as secondary to service-connected sinusitis or rhinitis, and to include as due to exposure to asbestos in service, is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Specifically, a remand is warranted in order to obtain an addendum medical opinion regarding the etiology of the Veteran's respiratory disorder. The January 2021 Board remand directives instructed the RO to obtain a medical opinion regarding nature and etiology of any respiratory disorder, to include asthma, emphysema, and restricted lung disease. Specifically, the examiner was asked to address medical literature submitted by the Veteran and the Veteran's lay statements. This was not done. The RO obtained a medical opinion in March 2021; however, the examiner did not address the Veteran's submissions or lay statements. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Board fails to ensure substantial compliance, remand is appropriate. Id. Moreover, the March 2021 medical opinion regarding secondary service connection did not address aggravation, further necessitating a remand. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). 2. Entitlement to a TDIU is remanded. As the outcome of the Veteran's claim for service connection for a respiratory disorder may impact his claim of entitlement to TDIU, the latter claim is inextricably intertwined with the former claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, adjudication of the TDIU claim must be deferred until the RO has adjudicated the Veteran's remanded service connection claim. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran's respiratory disability, to include asthma, emphysema, and restricted lung disease. After reviewing the claims folder in its entirety, the examiner should address the following: (a) The examiner is asked to opine on whether any of the Veteran's respiratory disorders, to include asthma, clearly and unmistakably pre-exist service? (b) If the answer to (a) is yes, is it undebatable that the disorder(s) was not aggravated beyond its natural progression by service? (c) Alternatively, is the evidence persuasively for or against a finding that any of the Veteran's respiratory disorders, to include asthma, emphysema, or restricted lung disease, is etiologically related to an in-service injury, event, or disease in service, to include possible exposure to asbestos in service? (d) Alternatively, is the evidence persuasively for or against a finding that any of the Veteran's respiratory disorders, to include asthma, emphysema, or restricted lung disease, is caused or aggravated by his service-connected disorders, to include his service-connected sinusitis and/or rhinitis? In rendering these opinions, the examiner is asked to consider the following: (i) March 2018 correspondence, including an article titled "Spatiotemporal analysis of air pollution and asthma patient visits in Taipei, Taiwan"; (ii) October 2020 appellate brief, referencing multiple articles regarding the relationship between asthma, rhinitis and sinusitis; (iii) the Veteran's lay statements that physical exertion during physical training in service caused wheezing and shortness of breath, see November 2014 VA Form 9 and February 2018 Board hearing; and (iv) the Veteran's lay statements that his emphysema is due to asbestos exposure or other environmental exposures in Taipei, Taiwan. See May 2020 VA Form 21-526EZ. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.