Citation Nr: 20053597 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 15-23 431 DATE: August 12, 2020 REMANDED Entitlement to service connection for respiratory condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to September 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision. The Veteran filed a Notice of Disagreement (NOD) in March 2014, which resulted in a Statement of the Case (SOC) issued in May 2015. Subsequently, the Veteran filed a substantive appeal in June 2015 and elected to have a hearing. Accordingly, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2020 and a transcript of the hearing is of record. During the pre-hearing conference, the Veteran’s representative and the VLJ discussed the possibility that the issues of entitlement to service connection for sleep apnea, hypertension, and bilateral knee disability may also be in appellate status. Accordingly, the VLJ took testimony regarding these issues “so that we have the evidence if we determine that those issues are before the Board.” Upon further review, the Board finds that the Veteran did not file a substantive appeal after the agency of original jurisdiction issued a May 2017 SOC denying entitlement to service connection for sleep apnea, hypertension and bilateral knee disabilities. Therefore, the appeal of these issues unfortunately was not perfected and is not in appellate status; the Board cannot adjudicate them. The Veteran is invited to file a supplemental claim for these issues if he wishes to pursue them. Entitlement to service connection for respiratory condition is remanded. The Veteran underwent VA examinations in May 2014. At that time, although the Veteran reported history of dyspnea for eight years, the examiner concluded that the Veteran does not have a respiratory condition. Since that time, the Veteran has submitted private treatment records from June 2015 that suggest chronic dyspnea and restrictive lung disease. Private treatment records dated in July 2018 show acute hypoxic respiratory failure and a chest CT angiogram showed bilateral basilar ground glass opacities likely indicating atelectasis and calcified granulomas. The Veteran also submitted a letter from his treating physician in December 2015 that says that he has a chronic shortness of breath. Although the physician stated that “asbestosis can contribute to . . . chronic shortness of breath,” he has not offered a complete rationale to support this conclusion. The opinion also does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence). Therefore, the opinion from the Veteran’s treating physician is inadequate, and the Board cannot rely on it to adjudicate the issue. Thus, a remand to obtain an adequate opinion is necessary before the claim can be adjudicated. The matters are REMANDED for the following action: Forward the claims file to an appropriate VA examiner to provide an opinion regarding the etiology of the Veteran’s respiratory condition. The examiner should review the claims file in its entirety and answer the following: 1. Identify all respiratory conditions and/or diagnoses present at any time since November 2010. 2. For each identified condition/diagnosis: Is the condition/diagnosis at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include exposure to asbestos and dust inhalation? The examiner should accept for the purpose of this examination that the Veteran was repeatedly exposed to asbestos and significant dust inhalation while chiseling and grinding tiles and chipping paint in an enclosed space with no respirator (or at times insufficient filters to make the respirators effective). See Hearing Transcript. If the examiner cannot provide the requested opinion without resorting to speculation, please provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.   LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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.