Citation Nr: A24029744
Decision Date: 06/06/24	Archive Date: 06/06/24

DOCKET NO. 240326-429333
DATE: June 6, 2024

REMANDED

Entitlement to service connection for a bronchitis disability is remanded.

Entitlement to service connection for a lower back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 2001 to February 2003 with additional service in the Army Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In the March 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the January 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

However, because the Board is remanding the claims of entitlement to service connection for bronchitis and service connection for lower back pain, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019). 38 U.S.C. § 7107(a)(2) (2012).

1. Entitlement to service connection for a bronchitis disability is remanded.

The Board finds there is a pre-decisional duty to assist error warranting remand. The Veteran contends service connection for a current bronchitis is warranted.  The Board finds that the evidence at the time of the rating decision was sufficient to raise this duty to assist in providing a VA examination with opinion. McLendon, 20 Vet. App. 79. Failure to obtain an examination was a pre-decisional duty to assist error requiring remand.  

2. Entitlement to service connection for a lower back disability is remanded.

The Veteran was afforded a VA examination in December 2023. The December 2023 VA examiner opined that the current lower back pain is less likely than not incurred in or caused by the claimed in-service injury, event or illness. While the examiner provided a rationale in part that, the file does not support evidence of chronicity of back pain, the examiner failed to address the Veteran's lay statement that the condition onset in active-duty service after the MVA and has gotten worse.  Based on the foregoing, the December 2023 VA medical opinion is inadequate and the failure to obtain an adequate opinion is a pre-decisional duty to assist error that warrants a remand.

The matters are REMANDED for the following action:

1.  Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any found respiratory conditions to include asthma and bronchitis disability. The entire claims file and this remand should be made available for review. 

The examiner is asked to identify any respiratory conditions found, to include asthma and bronchitis. 

For each respiratory condition found the examiner should render an opinion, including rationale, addressing whether likelihood is at least approximately balanced or nearly equal, if not higher) that the found condition(s) are related to service, to include the Veteran's report of asthma in 2003. 

2. Obtain an addendum opinion from an appropriate clinician regarding whether the likelihood is at least approximately balanced or nearly equal, if not higher that the Veteran's low back pain is caused by the Veteran's March 1994 MVA. An adequate rationale should be provided.

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Asare, Ama K.

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.