Citation Nr: 21000470 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-10 162 DATE: January 5, 2021 REMANDED Entitlement to service connection for a respiratory condition, including as due to in-service chemical or asbestos exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to January 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in March 2019 and January 2020 when it was remanded for further development. Respiratory Condition In the Board’s January 2020 remand, it was noted that the June 2019 VA respiratory conditions examination did not consider the Veteran’s complete medical history. The examiner was directed to provide an addendum medical opinion, and to identify all respiratory diagnoses present since April 2013, to include asthmatic bronchitis, asthma, and COPD. With regard to each diagnosed respiratory condition, the examiner was asked to address whether it was at least as likely as not that each respiratory condition, to include asthmatic bronchitis, asthma and COPD, was related to the Veteran’s service, to include in-service asbestos exposure and exposure to solvents and brake dust and other various chemicals from his duties as a vehicle mechanic. It was noted that the examiner had to consider that the Veteran’s reports of exposure to other solvents and brake dust while completing his duties was consistent with the nature of his job as a vehicle mechanic, and therefore, there is evidence that he had exposure to various chemicals. A medical opinion was obtained in March 2020. The June 2019 VA examiner stated that the Veteran had two respiratory conditions, one of which was asthma. The examiner stated that the Veteran was a wheeled mechanic in service, which more likely than not exposed him to asbestos in the brake linings of the vehicles he serviced. As to exposure to any other agents or chemicals, the examiner stated that it would be pure speculation. The fact that the Veteran’s symptoms did not develop until about 45 years after service, coupled with the fact that asbestos does not produce asthma, made it less likely than not the Veteran’s asthma is related to service. Although the Board’s remand specifically stated that the examiner had to consider that the Veteran’s reports of exposure to other solvents and brake dust while completing his duties was consistent with the nature of his job as a vehicle mechanic and therefore was evidence that he had exposure to various chemicals, the examiner did not consider the Board’s directives and as previously stated in the June 2019 VA examination, stated that it would be pure speculation to state that the Veteran had exposure to any other agents or chemicals in service. The clinician also did not discuss the Veteran’s diagnosis of asthmatic bronchitis, which is documented in private treatment records received in January 2020. As such, the Board finds that there was not substantial compliance with the directives of the January 2020 remand. Remand for a supplemental medical opinion by a new clinician is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that substantial compliance with remand directives is not discretionary or optional and that the Board errs as a matter of law when it fails to ensure such compliance). Also, on remand, updated VA treatment records from June 2020 to the present should be obtained and associated with the claims file.   The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the present. 2. After completing the above development, provide the claims file to an appropriate VA clinician other than the June 2019 VA examiner for an addendum opinion regarding the Veteran’s claim for service connection for a respiratory condition, including as due to in-service chemical or asbestos exposure. The clinician must review the entire claims file, including a copy of this Remand. The Veteran should only be scheduled for another examination if it is deemed necessary by the clinician providing the opinion. Following a review of the Veteran’s claims file, the clinician must answer the following questions: a) Identify all respiratory diagnoses present since April 2013, to include asthmatic bronchitis, asthma, and COPD as noted in November 2013 private treatment records. The examiner is advised that even if a disability subsequently resolves during the appeal period, service connection may still be awarded if a disability is diagnosed at the time the claim was filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). b) With regard to each diagnosed respiratory condition, is it at least as likely as not (a 50 percent or greater probability) that each respiratory condition, to include asthmatic bronchitis, asthma and COPD, is related to the Veteran’s service, to include in-service asbestos exposure and exposure to solvents and brake dust and other various chemicals from his duties as a vehicle mechanic? The examiner must consider that the Veteran’s reports of exposure to other solvents and brake dust while completing his duties is consistent with the nature of his job as a vehicle mechanic, and therefore there is evidence that he had exposure to various chemicals. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.