Citation Nr: 25008771 Decision Date: 07/03/25 Archive Date: 07/03/25 DOCKET NO. 09-29 560 DATE: July 3, 2025 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1983 to September 1991. In October 2014, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript of the hearing is in the record. In April 2023, the Board denied entitlement to service connection for a respiratory disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In February 2024, the Court granted a Joint Motion for Remand (JMR) vacating the Board's decision and returning the issue to the Board. In June 2024, the Board remanded this claim for development consistent with the JMR. In May 2025 correspondence, the Board advised the Veteran that the VLJ who conducted the hearing was no longer with the Board, and informed him that he was entitled to another hearing if he so desired. He was given 30 days to request another hearing but did not respond. Accordingly, the Board assumes that the Veteran does not desire another Board hearing. Entitlement to service connection for a respiratory disability As an initial matter, a June 2010 VA treatment record references disability determination service documents being scanned into VistA Imaging. A September 2012 VA treatment record notes that a complete spirometry report dated September 18, 2012, was scanned into VistA Imaging. Additionally, a September 2024 VA treatment record refers to a progress note from Frontier Neurosciences that was scanned into VistA Imaging; the note is signed by respiratory therapists, which indicates that such records may be relevant to the Veteran's respiratory claim. See also VA treatment records in December 2017 and August 2018, noting documents scanned into VistA Imaging. The Board is not able to access records scanned into VistA Imaging and a remand is unfortunately required to obtain these records. Additionally, the current record includes evidence that the Veteran applied for Social Security Administration (SSA) disability benefits, but there is no indication that these records have been sought for the record by VA. Because SSA records are constructively of record, and because the Board is unable to find that such records would not be relevant, they must be sought on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The June 2024 Board remand instructed the AOJ to obtain an addendum opinion regarding the nature and likely etiology of any diagnosed respiratory disability. The clinician was to identify any diagnosable respiratory disability and specifically address certain documents. The August 2024 clinician determined that the Veteran did not have a "current respiratory disability." In making this conclusion, the clinician noted a summary of pulmonary function tests (PFTs) and stated that the "actual results are not available to review so I cannot glean any information from this to ascertain what was going on at that time." She explained that neither asthma nor chronic obstructive pulmonary disease fit the Veteran's clinical picture given his normal PFTs in 2012 and 2022 because these types of diagnoses do not just "'come and go' especially without treatment." Additionally, reactive airway disease was not diagnosed because the Veteran had no "current symptoms that are consistent with reactive airway disease." Importantly, the clinician noted that the Veteran stated that his breathing problems began when he broke his nose "which is certainly not related to any lung condition such as asthma, COPD[,] or reactive airway disease." The Board finds this examination and opinion inadequate to the extent it focuses on the Veteran's "current" symptoms instead of determining whether the Veteran had a diagnosis of any respiratory disability throughout the course of his appeal. Additionally, as the Veteran served in the Persian Gulf, an opinion is needed to determine whether he has any symptoms that are related to an undiagnosed illness; an opinion is also needed to determine whether any symptoms are related to or caused by a service-connected or non-service-connected disability. The matter is REMANDED for the following action: 1. Obtain copies of VA treatment records from January 2025 to the present. Additionally, all records stored in VistA Imaging, to include the specific documents mentioned above, must be made available for inclusion in the Veteran's claim file. 2. Obtain for the record from SSA copies of its determination on the Veteran's claim for SSA disability benefits (and all medical records considered in connection with such claim). 3. Thereafter, provide copies of all pertinent records to an appropriate clinician to conduct a telehealth interview with the Veteran and provide an addendum opinion regarding the nature and likely etiology of any diagnosed respiratory disability. If the clinician determines that an opinion cannot be provided without an in-person examination, one should be scheduled. Based on review of the record and interview with the Veteran, the clinician should provide an opinion with detailed rationale that responds to the following: (a) Obtain a history from the Veteran and ask him to identify all claimed respiratory symptoms throughout this appeal period. (b) After obtaining the history and reviewing the Veteran's medical record, identify the Veteran's complaints and symptoms and determine whether such can be attributed to a known clinical diagnosis. Specifically, the clinician should address EACH COMPLAINT / SYMPTOM THROUGHOUT THE APPEAL PERIOD are opine as to whether such are related to his service-connected fractured nose, a non-service-connected heart disability, or whether he has a diagnosis of asthma, COPD, or reactive airway disease. (b) Are any of the Veteran's respiratory complaints / symptoms attributable to a medically unexplained chronic multisymptom illness? (c) Are any of the Veteran's respiratory complaints / symptoms and disability patterns objective indications or manifestations of a chronic undiagnosed illness? (d) If the Veteran has a diagnosed respiratory disability (either currently or at any time during the course of this appeal), then is such at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to an in-service injury, event, or disease, to include as due to residuals of pneumonia or as a result of presumed toxic exposure? The AOJ must review the opinions and ensure that the foregoing development action has been completed in full. Specifically, if the clinician determines that certain documents or information are needed prior to rendering a complete opinion, such documents or information should be provided. The RO should not return this matter to the Board until it has obtained adequate, accurate opinions specifically addressing the Veteran's lay statements as to symptomatology. If any report does not include adequate responses to the specific opinions requested, it must be returned for corrective action 4. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.