Citation Nr: 1805732 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-42 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for emphysema/chronic obstructive pulmonary disease (COPD). ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to December 1969 and was awarded the National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2013 at which time the Board denied the benefits sought on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2014, the Veteran and VA's Office of General Counsel filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication. The Court granted the Joint Motion and returned the case to the Board. Pursuant to the Joint Motion for Remand, the Board remanded the matter in September 2014 for additional treatment records. In June 2015, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In September 2015, the Board remanded the appeal to afford the Veteran a VA examination to determine the nature and etiology of his claimed emphysema and asbestosis. In March 2016, the Board remanded the appeal to obtain an addendum VA medical opinion to address the questions posed in the September 2015 remand directives. In March 2017, the Board remanded the appeal to obtain a VA medical opinion to address the questions posed in the September 2015 and March 2016 remand directives. In an October 2017 rating decision, the RO granted service connection for asbestos-related pleural thickening, assigning a rating of 10 percent, effective October 13, 2009. To this date, the Veteran has not appealed the initial rating assignment or effective date and the Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to those issues. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In March 2017, the Board remanded the appeal to obtain an opinion regarding whether it was at least as likely as not that the Veteran's emphysema was related to active service. Additionally, the VA examiner was directed to address the January 2013 VA examination report, CT scans in April 2009 and April 2010, as well as VA treatment records from May and July 2010 showing pleural thickening in the Veteran's lungs. In August 2017, a VA examiner opined that the Veteran's COPD was not related to his conceded in-service asbestos exposure. The examiner explained that he is unaware of any evidence-based medical literature supporting such a relationship and, in the Veteran's case, there was no supporting medical records that would provide evidence that asbestos exposure would predispose the Veteran's development of COPD. He also indicated that there was no evidence of a COPD diagnosis in service or within one year of his separation. The examiner further noted that the Veteran had a tobacco use history and that tobacco use is a risk factor in the development of COPD. Significantly, however, the VA examiner did not address why the Veteran's exposure to asbestos during service was not a risk factor for COPD nor did he cite to medical literature that would support his conclusions. Based on the foregoing deficiencies, the Board finds that this opinion is inadequate and an addendum opinion is needed. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's VA claims file to a VA pulmonologist (other than the VA examiner who conducted the December 2015 VA examination and the VA examiner who rendered the August 2017 opinion), or if unavailable, another suitably qualified VA medical professional, for an opinion as to the nature and etiology of the Veteran's emphysema and COPD. If, after review of the claims file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The claims file, including any radiology images and pulmonary function tests, must be made available to the examiner for review. The examiner should conduct a thorough examination and identify any pathology found. a. With respect to the Veteran's emphysema/COPD, is it at least as likely as not (50 percent probability or greater) that this disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, of the Veteran's conceded asbestos exposure and the Veteran's service-connected asbestos-related pleural thickening. Please note that a medical opinion which concludes that a disease is not related to service solely because there is absence of medical records is inadequate. The examiner should specifically address the January 2013 VA examination report, CT scans in April 2009 and April 2010, as well as VA treatment records from May and July 2010 that show pleural thickening in the Veteran's lungs. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).