Citation Nr: 21002350 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-09 059A DATE: January 13, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected coronary artery disease (CAD) from June 21, 2010 and in excess of 60 percent from August 29, 2019 is remanded. Service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD) and chronic bronchitis, is remanded. Service connection for a left foot disability, to include hallux valgus, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and May 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested a hearing before a Veterans Law Judge in his substantive appeal. However, in November 2013, he indicated that he wished to cancel that hearing. Thus, his hearing request is considered withdrawn. 38 C. F. R. §20.704(e). In April 2015 and February 2017, the Board remanded the case for further evidentiary development. This case was last before the Board in September 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ increased the Veteran’s CAD to 60 percent disabling effective August 29, 2019 and confirmed and continued the prior denials for service connection. The AOJ then returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford him every possible consideration. 1. Entitlement to an initial rating in excess of 10 percent for service-connected CAD from June 21, 2010 and in excess of 60 percent from August 29, 2019 is remanded. The Veteran was last examined for purposes of assessing the severity of his CAD in August 2019. The examination report reflects that at the time the Veteran did not have a history of atrial fibrillation. Since that examination, there appears to have been a worsening of the Veteran’s CAD. In October 2019, the Veteran was noted to be in atrial fibrillation with rapid ventricular response. His dyspnea was noted to be worse with exertion. In response, the Veteran’s medications were changed – his atenolol was stopped and switched to metoprolol tartrate 75 mg, twice daily and he was also started on Cardizem 360 mg. These medications are different from the ones he was prescribed at the time of his August 2019 examination. See December 2019 CAPRI. Additionally, January 2020 VA treatment record reflected that the Veteran had heart failure and decreased cardiac output related to status post right carotid endarterectomy. See May 2020 CAPRI. Under the circumstances, a new examination is warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Service connection for a lung disability, to include COPD and chronic bronchitis, is remanded. The Board finds that a new opinion is warranted for the Veteran’s claim. In August 2019, a VA examiner provided a negative opinion for the Veteran’s claim. The examiner reasoned that because COPD was not on the list of presumptive Agent Orange diseases and the Veteran was an avid smoker, his COPD was more likely related to smoking rather than Agent Orange exposure. In a June 2020 addendum opinion, the examiner added that the Veteran “could have been exposed to other environmental things which could have caused COPD.” The Board finds the examiner’s use of “could” in noting the Veteran’s possible exposure to other environmental factors to be speculative. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term “could,” without additional rationale or supporting data, is speculative); Goss v. Brown, 9 V et.App. 109, 114 (1996) (noting that the use of the phrase “could not rule out” was too speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as “the veteran’s death may or may not have been averted”). As such, a remand is needed obtain a new opinion. 3. Service connection for a left foot disability, to include hallux valgus, is remanded. The Board finds that a new examination and opinion is warranted for the Veteran’s claim. In August 2019, a VA examiner provided a negative opinion for the Veteran’s claim. The examiner reasoned that because the Veteran’s records showed “a non-service-connected disability of hallux valgus,” his left foot disability was not related to the Veteran’s “in service hallux valgus.” The examiner also noted that the Veteran appeared to have dermatological disability on his foot, which the Veteran related to service. In a June 2020 addendum opinion, the examiner reaffirmed her negative opinion because the Veteran was “denying the hallux valgus as a foot condition and is reporting a dermatological complaint in its place.” The Board finds the examiner’s opinion to be conclusory at best. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner did provide any reasoning other than summarily concluding that because the Veteran was seeking service connection for a foot disability other than hallux vagus, his foot disability was not related to service. As such, remand is needed to obtain new examination and opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123, 124-25 (2007) (noting that an examination must provide “sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one’” and must “support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The matters are REMANDED for the following action: 1. Assist the Veteran with uploading updated treatment files. 2. Arrange to have the Veteran scheduled for a VA examination for purposes of assessing the current severity of his CAD. The examiner should provide a full description of the Veteran’s associated functional impairments. 3. Ask an examiner of appropriate expertise to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. Based on review of the record and conducting an examination (if deemed necessary) of the Veteran, the examiner should respond to the following: a) The examiner should state whether it is at least as likely as not (a 50 percent probability or more) that a lung disability, to include chronic obstructive pulmonary disease (COPD) and chronic bronchitis, began in service, was caused by active service, or is otherwise related to active service. The examiner must also opine as to whether any diagnosed lung disability was at least as likely as not due to presumed herbicide exposure. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions and cannot rely solely on the fact that the Veteran’s condition has not been presumptively associated with Agent Orange exposure. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Schedule the Veteran for an examination with the appropriate examiner(s) for his left foot disability. The examiner must review the Veteran’s file. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: a) The examiner should state whether it is at least as likely as not (a 50 percent probability or more) that ANY left foot disability, to include hallux valgus, was caused by active service, or is otherwise related to active service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must address the Veteran’s statement that his left foot disability is due to gasoline exposure on his left foot during service. (Continued on the next page)   The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.