Citation Nr: 21004401
Decision Date: 01/27/21	Archive Date: 01/27/21

DOCKET NO. 15-34 154
DATE: January 27, 2021

REMANDED

Entitlement to accrued benefits based on a pending claim for service connection for a respiratory disability, claimed as pulmonary fibrosis is remanded.  

INTRODUCTION

The Veteran served on active duty from January 1954 to August 1975.  He died in February 2017, and the Appellant is his surviving spouse. 

When this case was previously before the Board in February 2017 and August 2020 the above-noted issue was remanded for further development.  The case has since been returned for additional appellate review.

REASONS FOR REMAND

Though untenable, the Board finds additional development is yet again required before the Appellant’s claim is decided.  As previously noted, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In the course of the August 2020 remand, the Board determined a June 2020 medical opinion contained critical deficiencies, because the examiner did not explain how or why the Veteran’s respiratory infections in service could not have caused his post-service pulmonary fibrosis.  The RO obtained an addendum medical opinion from a second examiner in November 2020.  Though the examiner provided a complete explanation for his conclusion that the Veteran’s chronic obstructive pulmonary disease (COPD) and pulmonary fibrosis were less likely than not caused by his exposure to herbicides, the examiner unfortunately also failed to explain how or why the Veteran’s respiratory infections in service could not have caused his subsequently diagnosed COPD or pulmonary fibrosis.  Therefore, a remand is again necessary in order to obtain an addendum medical opinion that comprehensively addresses this alternative theory of entitlement.

Accordingly, this case is REMANDED for the following actions:

Obtain an addendum medical opinion from the VA examiner that provided the November 2020 medical opinion, if available, and if unavailable from an examiner with sufficient expertise to address the etiology of the Veteran’s respiratory disability.  All pertinent evidence of record must be made available to and reviewed by the examiner.

Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to all diagnosed respiratory disorders present during the period of the claim, to specifically include COPD and pulmonary fibrosis.  

Specifically, the examiner should state whether any diagnosed disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include the Veteran’s treatment for upper respiratory infections therein. 

The examiner must provide a complete rationale for all proffered opinions.  In this regard, the examiner must discuss and consider the Veteran’s competent lay statements.  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.  

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Fraser, 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.