Citation Nr: 23067006 Decision Date: 12/20/23 Archive Date: 12/20/23 DOCKET NO. 12-05 343 DATE: December 20, 2023 REMANDED Entitlement to service connection for respiratory disability, to include asthma and bronchitis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 15, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1993 to December 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in March 2023, the Board remanded this matter for further development. Entitlement to service connection for respiratory disability, to include asthma and bronchitis, is remanded. In the March 2023 remand, the Board instructed that an examiner compile a list of all respiratory disabilities, to include asthma and bronchitis. If the examiner disagreed with any diagnosis or lack thereof, the examiner was asked to explain why. The examiner was also asked to opine as to whether it is at least as likely as not that the Veteran's current respiratory disability, to include asthma and bronchitis, is related to an in-service injury, event, or disease and whether it is at least as likely as not that his current respiratory disability, to include asthma and bronchitis, was either proximately due to or aggravated by any service-connected disability. The examiner was to provide specific evidence of record to support the conclusions, such as references from this Veteran's relevant medical history and/or medical literature. The examiner was also asked to explicitly address the Veteran's contentions that his disability began during service. Additionally, the examiner was advised of the Veteran's assertion that he experiences symptoms, such as wheezing and coughing due to chest tightness, and takes asthma medication and breathing inhalers. Furthermore, the examiner was directed to explicitly address service treatment records that showed that the Veteran underwent treatment for respiratory problems. Pursuant to the remand, a March 2023 VA addendum opinion was obtained. Although the record reflects a diagnosis of asthma throughout the pendency of the claim, during VA treatment and in the recent August 2022 VA respiratory examination, the March 2023 VA examiner determined that the Veteran did not have a current respiratory disability and as a result, responded "N/A" to the questions posed in the remand directives. The VA examiner did not address whether the Veteran has had a disability during the appeal period. The Board notes that the presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) ("With regard to the requirement that a claimant have a current disability before service connection may be awarded for that disability, this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim"). Stegall, 11 Vet. App. at 271. Therefore, the Board finds the March 2023 VA addendum opinion inadequate due to failure to substantially comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU prior to April 15, 2015 is remanded. The Board finds this matter is inextricably intertwined with the above-mentioned remanded claim for service connection for a respiratory disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact' upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). Therefore, the adjudication of a TDIU prior to April 15, 2015 is deferred. Furthermore, pursuant to the March 2023 Board remand, a VA addendum opinion was to be obtained from an appropriate medical examiner regarding the Veteran's functional impairment and effects on employment from his service-connected disabilities for the period prior to April 15, 2015. A VA addendum opinion was obtained in March 2023. However, the examiner only addressed the Veteran's service-connected major depressive disorder. Stegall, 11 Vet. App. at 271. Accordingly, on remand, the agency of original jurisdiction (AOJ) must obtain another addendum opinion that considers the entire claims file and addresses the Veteran's functional impairment and effects on employment from his service-connected disabilities for the period prior to April 15, 2015. The matters are REMANDED for the following actions: 1. Return the claims file to the March 2023 VA examiner or another qualified examiner, to provide an addendum opinion concerning the Veteran's current respiratory disability, to include asthma and bronchitis. The clinician is to review the claims file, including a copy of this Remand. If a pulmonologist is not available, then a physician with the requisite expertise should review the completed report, note such, and make any relevant comments, observations, or opinions. The reviewing clinician is asked to provide a response to the following: (a.) Compile a list of all respiratory disabilities, to include asthma and bronchitis, present during the appeal period. See 1/31/2007 CAPRI, at page 13; see also 6/30/2015 CAPRI, at page 152. If the examiner disagrees with any diagnosis or lack thereof, the examiner must explain why. (b.) Determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current respiratory disability, to include asthma and bronchitis, is related to an in-service injury, event, or disease. (c.) Determine whether is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that his current respiratory disability, to include asthma and bronchitis, was either 1) proximately due to OR 2) aggravated by any service-connected disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. **The examiner must provide specific evidence of record to support his conclusions, such as references from this Veteran's relevant medical history and/or medical literature. In doing so, please explicitly address the Veteran's contentions that his disability began during service; however, he was told not to say he had asthma as it could result in an early dismissal from service due to his short time being on active duty, the term "breathing problems" was used, and he was prescribed medication. Additionally, he contends he experiences symptoms, such as wheezing and coughing due to chest tightness, and takes asthma medication and breathing inhalers. See 6/27/2008 Correspondence; see also 11/5/2008 NOD; 3/5/2012 Correspondence; 12/11/2022 NOD. Further, he experiences difficulty breathing and asthma attacks, and uses an asthma inhaler. See 6/7/2008 Buddy / Lay Statement. Moreover, please explicitly address service treatment records that showed that the Veteran underwent an "Asthma -Hay Fever Consult." In addition, in March 1996 the Veteran was wheezing the past month. Furthermore, in May 1996 the Veteran experienced mild expiratory wheezing in the lungs following an allergy injection. Also, in September 1996 the Veteran complained of a tight chest following an allergy injection. Additionally, service dental record showed that the Veteran took Atrovent for asthma. Service records further showed an assessment of bronchitis. See 7/1/2000 STR -Medical, at pages 3, 6, 7, 13, 17, 25, 79. The examiner is reminded that the competent and probative evidence only needs to be in approximate balance (or nearly equal). For the limited purposes of this remand and providing an opinion, the Board has found the Veteran credible to describe his in-service incidents and his continued symptoms since service. Note: A full credibility determination will be made a later date, if needed, once additional evidence has been added to the claims file.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. 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. Return the claims file to the March 2023 VA examiner or another qualified examiner, to provide an addendum opinion regarding the Veteran's functional impairment and effects on employment from each of his service-connected disabilities for the period prior to April 15, 2015. (Continued on the next page) ? The examiner should review the claims file and address the Veteran's functional limitations due to each of his service-connected disabilities, separately and jointly, as they may relate to his ability to function in a work setting and to perform work tasks. The examiner must specifically take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. 3. Then, readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Griffith, Shari 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.