Citation Nr: 19141069 Decision Date: 05/29/19 Archive Date: 05/29/19 DOCKET NO. 17-25 895 DATE: May 29, 2019 REMANDED 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. 2. Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1958 to February 1961. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision. In September 2017, the Board remanded these matters for additional development. In a March 2018 decision, the Board denied service connection for COPD and asthma. The Veteran appealed the Board’s March 2018 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, a November 2018 CAVC Order vacated the Board’s decision, and remanded the matters for action in compliance with the JMR instructions. 1., 2. Entitlement to service connection for COPD and asthma In the November 2018 JMR, the parties agreed that vacatur and remand were warranted for two reasons. First, the parties agreed that the March 2018 Board decision failed to ensure compliance with the duty to assist; the agreed that the Board relied on an inadequate medical opinion (comprised of an initial January 2015 opinion with December 2016 and March 2017 addenda opinions) as the opinion “did not include a reasoned medical explanation connecting the supporting data therein to the conclusion provided.” The opinion was also found to be inadequate as the provider noted that a “chest CT would be most helpful in diagnosing [the Veteran’s] exposure to asbestos,” but such was not ordered/conducted. The parties agreed that on remand, “the Board should also consider whether VA, as part of its duty to assist [the Veteran], should attempt to obtain a chest CT, or similar diagnostic test.” In January 2019, the Veteran submitted a private November 2018 chest CT report. However, as a remand for an adequate nexus (to service) opinion is necessary, the consulting provider will have opportunity to review the newly submitted chest CT report and determine whether additional/different diagnostic tests are necessary. The parties also agreed that the March 2018 Board decision failed to adequately explain how VA substantially complied with a prior (September 2017) Board remand. The parties cited to an October 2017 Report of General Information which certified that medical records from the Loma Linda VAMC for the period of January 1995 to May 1999 do not exist, but found that the Veteran was not properly notified as contemplated by 38 C.F.R. § 3.159(e)(1). The JMR notes that, “On remand the Board will ensure that agency action is taken consistent with 38 C.F.R. § 3.159(e)(1) and, if appropriate, issue a formal finding as to the availability of any pre-May 1999 treatment records from the Loma Linda VAMC.” Finally, upon further review of the record, it appears that additional pertinent private treatment records remain outstanding. In a statement received in March 2018 (dated March 5, 2017), the Veteran noted that, a review of his claims file found VA has “very few statements from Beaver Medical Clinic, my main health provider.” He had also reported (on January 2015 VA examination) that he was treated for breathing problems in an emergency room “several years ago”; records of such treatment are not associated with the record. Complete treatment records of non-VA health providers may contain pertinent information, and must be sought. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matters are REMANDED for the following: 1. Issue a Formal Finding on the Unavailability of Records Memorandum consistent with 38 C.F.R. § 3.159(e)(1) regarding pre-May 1999 treatment records from the Loma Linda VAMC. Send the Veteran appropriate notice that VA will decide the claims based on the evidence of record unless he submits any such records he might have. 2. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for the claimed disabilities since October 2017 (when the most recent VA treatment records in the record were added to the record). 3. Ask the Veteran to identify all private providers of evaluations or treatment he has received for asthma and COPD (records of which are not already in the record) and to submit authorizations for VA to secure for the record complete clinical records from all providers identified, specifically including Beaver Medical Group and for respiratory treatment at an unspecified emergency room in the early-to-mid 2010’s. Then, obtain the records. 4. When the development requested above is completed, arrange for a respiratory diseases examination of the Veteran (preferably by a pulmonologist, if available) to determine the nature and likely etiology of his asthma and COPD. The Veteran’s entire record (to include this remand and any newly received records) must be reviewed by the examiner in conjunction with the examination. The examiner should specifically review the private November 2018 chest CT report and conduct any additional tests or studies deemed necessary. On examination/interview of the Veteran and review of his record, the examiner should: Identify the likely etiology for the Veteran’s asthma and COPD. Specifically, is it at least as likely as not (a 50 % or greater probability) that the asthma and COPD were incurred or aggravated during his active service? The rationale for the opinion must acknowledge and discuss the Veteran’s exposure to asbestos in service (conceded by VA) and his past historical use of cigarettes, reported as a half to one pack per day from 1955 to 1965 (see January 2015 VA respiratory conditions examination report) and 1 pack per day for 8 to 10 years (see December 2014 statement). The examiner must include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, 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.