Citation Nr: 21003385 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 20-29 906A DATE: January 21, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1950 to October 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The Board notes that the Veteran filed a timely notice of disagreement in June 2019 and a statement of the case was issued in February 2020. The Veteran then filed a untimely substantive appeal that was received in October 2020, in which he explained that he was unable to timely file the form due to closures related to the COVID-19 pandemic. The agency of original jurisdiction (AOJ) accepted this substantive appeal as timely filed and subsequently certified the case to the Board and informed the Veteran that his claim had been certified to the Board. The AOJ did not inform the Veteran that his substantive appeal was untimely or that it could not be accepted. Consequently, the Board has accepted the Veteran’s substantive appeal as timely. See also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). 1. Entitlement to service connection for chronic obstructive pulmonary disease is remanded. The Veteran seeks to establish service connection for his chronic pulmonary obstructive disease. Specifically, the Veteran contends that his condition is the result of inhaling smoke from the fire and poisonous fumes from the fire suppressant while being trapped on a burning plane at Fort McClellan Air Force Base in October or November 1951. The Veteran also has submitted a statement in which he describes the details of the B-29 crash. See Correspondence – 9/20/2018. The Veteran states that he suffered from smoke inhalation, cuts, and bruises as a result of the crash. The Veteran also stated that the plane was on fire after the crash, causing the smoke that the Veteran subsequently inhaled into his lungs. Service treatment records are generally silent as to any complaints, treatment, or diagnoses relating to chronic obstructive pulmonary disease. However, the service treatment records do contain an October 1951 clinical note describing the Veteran suffering from wounds, lacerations, and contusions as a result of being in a B-29 aircraft that crash-landed at McClellan Air Force Base, California in October 1951. Post-service treatment records reflect findings of mild hyperinflation consistent with chronic obstructive pulmonary disease in a November 2017 VA treatment note and a September 2018 private Respiratory Conditions Disability Benefits Questionnaire (DBQ) report reflected a diagnosis of chronic obstructive pulmonary disease. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In the instant matter, the Board has evidence of a current disability, as evidenced through the medical record and recent treatment for Veteran’s COPD. The record also suggests an in-service event, an airplane crash, which occurred during the Veteran’s service, and has been indicated by the Veteran to be causally related to his current condition. As the bar under McLendon is low, the Board finds it appropriate to remand this matter to allow for the Veteran to be provided a VA examination to include an etiology opinion. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed chronic obstructive pulmonary disease. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further in-person physical examination is left to the discretion of the examiner. The examiner should respond to the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s chronic obstructive pulmonary disease had its onset or is related to active service, particularly to the B-29 aircraft crash which occurred in October 1951? The examiner should specifically address the Veteran’s contentions that his current chronic obstructive pulmonary disease is the result of inhaling smoke from the fire and poisonous fumes from the fire suppressant while being trapped on a burning plane during service. The examiner shall consider all the evidence, to include the Veteran’s statements that he inhaled smoke and poisonous fumes during the airplane crash. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, Associate 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.