Citation Nr: 20008377 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 09-23 119 DATE: January 31, 2020 REMANDED The issue of service connection for a respiratory disability, to include as due to asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1963 to December 1964. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2008 rating decision. In August 2010, the Veteran testified at a Board hearing; a transcript of the hearing is associated with the claims file. In April 2011 and June 2012, the Board remanded this matter to the agency of original jurisdiction (AOJ) for additional development. In December 2013, the Board denied the claim. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court), which granted a May 2014 Joint Motion for Remand (Joint Motion). In December 2014, the Board again remanded the claim and denied the claim in April 2017. The Veteran again appealed the denial to the Court. In September 2017, the Court granted a Joint Motion, vacating the Board’s April 2017 decision and remanding the matter for additional proceedings. In February 2018, the Board remanded the appeal for further development to comply with the recent Joint Motion. The parties to the September 2017 Joint Motion agreed that the April 2017 Board decision had failed to ensure substantial compliance with the terms of the December 2014 Board Remand. That Remand directed the AOJ to arrange for a respiratory examination of the Veteran by a physician specializing in pulmonology to ascertain the nature and likely etiology of any current respiratory disability. In March 2015, the Veteran was afforded a VA examination conducted by physician who was a pulmonary/critical care fellow. The report was cosigned by second VA physician specializing in pulmonary/critical care medicine. In April 2015, the cosigning pulmonologist provided an addendum medical opinion. In April 2016, the Chief VA physician of the Pulmonary-Critical Care section reviewed the Veteran’s claims file and provided another addendum opinion, which addressed the Veteran’s obstructive sleep apnea (OSA) and bronchiectasis. Again, the September 2017 Joint Remand detailed the parties’ belief that the Board “did not ensure that the April 2015, August [sic] 2015, and April 2016 VA addendum opinions complied with the terms of the Board’s December 16, 2014 [Remand].” In February 2018, the Board remanded the claim to the AOJ to obtain a “clinical opinion” as to whether the Veteran has had a current respiratory disability, to include chronic obstructive pulmonary disease (COPD), OSA, and/or bronchiectasis, at any time since December 2006 that was related to service, including the Veteran’s claimed exposure to asbestos, his December 1963 upper respiratory infection, and/or his July 1964 evaluation for a constant cough of three days’ duration. In October 2018, a VA family nurse practitioner reviewed the Veteran’s entire electronic claims file, provided the requested opinions, and supported those conclusions with a detailed medical rationale, which itself was supported by excerpts from current medical literature and explanations as to how these facts related to the Veteran’s current respiratory disorders and medical history. However, to ensure compliance with the December 2014 Board Remand instructions as directed by the Court, the AOJ should ask a physician specializing in pulmonary medicine to review the claims file and the October 2018 VA medical opinion and provide any necessary clarifications or corrections. The matters are REMANDED for the following action: 1. Obtain any ongoing treatment records from the Memphis VA Medical Center and Savannah VA Community Based Outpatient Clinic dating since April 2018. 2. Provide the Veteran’s entire electronic claims file, including a complete copy of the Board’s December 2014 and February 2018 Remand instructions, to a physician specializing in pulmonary medicine. After reviewing the claims file and the October 2018 medical opinion authored by a VA family nurse practitioner in detail, the reviewing pulmonologist should provide any necessary clarifications or corrections to the October 2018 medical opinion. Any additions or corrections to that opinion must be supported by a detailed medical rationale. If the reviewing pulmonologist concludes the October 2018 medical opinion is medically accurate and requires no further explanation, he or she should record that conclusion in the addendum medical opinion report. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.