Citation Nr: 21004937 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-05 129 DATE: January 28, 2021 REMANDED Entitlement to service connection for a lung condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1975 to June 1977. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board denied the Veteran’s above-mentioned claim in an August 2019 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). By way of an August 2020 Order, the Court granted a Joint Motion for Remand (JMR) filed by both parties. The case has now returned to the Board. In the August 2020 JMR, the parties agreed that the Board erred in its analysis that the presumption of soundness did not apply to the Veteran’s lung condition when he entered the service. Furthermore, the parties agreed in the JMR that reasonable efforts were not made in obtaining and associating with the claims file the Veteran’s private medical records. Moreover, the Board finds that the medical opinions of record are inadequate to determine the nature and etiology of the Veteran’s current lung disability. The September 2011 opinion concluded that it was less likely than not that the Veteran’s condition was due to service as the Veteran was noted to have a condition that pre-existed his active service. However, the September 2011 examiner did not opine as to whether the Veteran’s pre-existing condition was aggravated in service. In December 2011, another opinion was obtained which concluded that the Veteran’s disability was less likely than not aggravated by service. The December 2011 physician reasoned that there were no medical records from 1976 (a period during the Veteran’s active service) and 2005. An examiner cannot rely on lack of documentation to formulate an opinion. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Further, neither of these examiners discussed the Veteran’s service treatment records reflecting various in-service diagnoses related to his lungs. Therefore, the examiners did not consider all pertinent evidence of record regarding the nature and etiology of the Veteran’s disability. Accordingly, the Board finds that a remand is warranted to obtain any and all outstanding medical records regarding the Veteran’s lung condition and for a new opinion as to the nature and etiology of said condition. The matters are REMANDED for the following action: 1. The RO should request the Veteran to identify any and all outstanding and/or updated VA and/or private medical records related to his lung condition(s), including from 1976 to the present. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records must be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Then, forward the claims file to an appropriate physician who has not previously provided an opinion to ascertain the nature and etiology of any and all lung disorder(s) attributable to the Veteran. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be obtained. (a) The clinician should identify any and all lung condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that the Veteran’s condition existed prior to service. (c) If the clinician answers in the affirmative, the clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that (i) there was no increase in disability during service or (ii) any increase in disability was due to the natural progress of the pre-existing condition. (d) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active service. In formulating his or her opinions, the clinician must consider and address the competent medical and lay evidence of record, including, but not limited to: • The Veteran’s service treatment records; • The Veteran’s post-service VA medical records; • The Veteran’s post-service private medical records; and • The Veteran’s competent lay statements regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s lung condition(s) is/are less likely than not due to and/or aggravated by service, the clinician should discuss what other factor(s) caused the disorder(s). A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.