Citation Nr: 21002928 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-25 895 DATE: January 19, 2021 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. A March 2018 Board denied service connection for COPD and asthma, to include as due to conceded asbestos exposure. 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. In May 2019, the appeal was remanded for additional development. 1., 2. Entitlement to service connection for COPD and asthma The Board is aware that the appeal was previously remanded and regrets the delay inherent with another remand. However, in light of newly associated evidence and argument submitted by the Veteran’s attorney, the Board finds further development is necessary for proper consideration of the claims. In May 2019, the Board remanded the matters for additional development (pursuant to the November 2018 JMR). The Board directed the AOJ to issue a formal finding on the unavailability of pre-1999 treatment records from Loma Linda VAMC, secure updated VA treatment records, and ask the Veteran to identify, and submit authorizations for VA to secure records from, all private providers of treatment for asthma and COPD. Those tasks were completed by the AOJ. See September 27, 2019 VA correspondence. The Board also directed the AOJ to arrange for a respiratory diseases examination to determine the nature and likely etiology of the Veteran’s asthma and COPD, as the parties agreed in the JMR that the Board relied on inadequate medical opinions when it denied the claim previously. Because the November 2018 JMR noted that a prior examiner explained that a chest CT would be helpful in providing an opinion, and the Veteran submitted a November 2018 chest CT report (received in January 2019), the Board directed the examiner to specifically review such report. In December 2019, a fee-basis radiologist provided a negative nexus (to service) opinion; however, he specifically noted that he was unable to locate the November 2018 chest CT report. In a July 2020 statement, the Veteran’s attorney argued that asbestos exposure (conceded by the VA in this case) increases a person’s risk of developing COPD and may be a risk factor for the development of asthma. In support of his argument, he cited several medical websites/journal articles and included their respective web addresses. [Such treatise evidence gains probative value when applied by a medical professional to the specifics of a particular case.] He also raised a new contention, i.e., that by virtue of his service aboard the USS Perkins (a Gearing-class destroyer), the Veteran was exposed to diesel fumes, paint particles “from dusting paint and rust,” and potentially mold. The Board finds it plausible he was exposed to such elements during service, with extent undetermined. In October 2020, a VA physician reviewed the record, including the November 2018 chest CT report, and provided a negative nexus (to service) opinion. In part the rationale for the opinion explained, “There is no mention in Up-To-Date that asbestos exposure is a risk factor for developing or aggravating” asthma or COPD. [The Board notes that Up-To-Date is a medical literature aggregator and clinical resource.] As the medical advisory opinion apparently did not consider (or reconcile) the journal articles cited by the attorney regarding asbestos exposure, or address the additional/new contentions raised by the Veteran’s attorney in July 2020, further medical guidance is needed. Development for a fully adequate medical advisory opinion in the matter is necessary. The matters are REMANDED for the following: 1. 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 his COPD and asthma. 2. Then, arrange for any further development indicated and make formal findings of fact for the record regarding the nature and extent of the Veteran’s alleged exposures to diesel fumes, paint particles (including from reported dusting paint and rust), and mold, in service. 3. When the development requested above is completed, return the record to the physician who provided the October 2020 medical advisory opinion for an addendum medical opinion. [If that provider is unavailable or cannot provide the opinion sought, forward the record to another appropriate medical provider (such as a pulmonologist or occupational health specialist) for the opinion (and if in such circumstance further examination of the Veteran is deemed necessary, such should be arranged).] The entire record (including this remand, the Veteran’s July 2020 argument with citation to medical articles/journals, and the formal findings prepared pursuant to the development ordered above) must be reviewed. The provider should respond to the following: 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/or COPD were incurred or aggravated during his active service (to specifically include as due to the alleged environmental exposures therein)? The rationale for the opinion(s) must acknowledge and discuss: - The Veteran’s exposure to asbestos in service (conceded by VA); - 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 AOJ’s formal findings [to be made, as ordered above] regarding alleged exposures to diesel fumes, paint particles, and mold in service; and, - The internet medical articles/journals cited by the Veteran’s attorney in July 2020 (which report that asbestos exposure increases a person’s risk of developing COPD, asbestos exposure may be a risk factor for the development of asthma, diesel fumes are a risk factor for COPD, and exposure to mold may cause asthma). The consulting provider must include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. 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.