Citation Nr: 21061396 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 09-10 220 DATE: October 1, 2021 REMANDED The service connection claim for a lung disability, to include as due to an in-service exposure to asbestos, or as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1980 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. In May 2012 and August 2015, the Board remanded the case to the Regional Office for further evidentiary developments. In August 2017, the Board issued a decision, denying this claim. Thereafter, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 memorandum decision, the Court found that the Board erred in failing to fully address whether the Veteran's lung disability was aggravated by his service-connected rhinosinusitis. The Board clarifies that the Court did not express any issues with the Board's conclusion regarding direct service connection, and/or secondary service connection based on causation. Thus, the Court's remand was limited to reconsideration of secondary service connection based on aggravation by the service-connected rhinosinusitis alone. In November 2019 and May 2020, the Board remanded the issue for additional developments. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Nonetheless, after the Board remanded this issue to obtain an adequate VA opinion that is consistent with the Court's April 2019 memorandum decision, the Regional Office obtained VA opinions that are not in substantial compliance with the Board's remand directives, and ultimately the Court's memorandum decision. The reasons follow. In November 2019, the Board remanded the service connection claim for the lung disability to obtain clarification about a December 2016 addendum, with respect to secondary service connection based on aggravation by a service-connected disability. The Board specifically instructed that the Regional Office obtain an addendum opinion, in which a VA examiner must opine whether the Veteran's lung condition is at least as likely as not aggravated beyond its natural progression by his service-connected rhinosinusitis. Accordingly, the Regional Office obtained an addendum opinion from a VA examiner. In this January 2020 VA opinion, another VA examiner opined that it is less likely than not the Veteran has any lung condition that is aggravated beyond its natural progression by his service-connected rhinosinusitis. As a rationale for his opinion, the VA examiner reasoned that his opinion is based on a review of the Veteran's claims file, including "the recent [December 2019] medical records which were silent for a diagnosed lung condition with physical exam noting 'lungs clear to auscultation[,] no wheezing[,] no crackles." The Board clarifies that for purposes of VA compensation, a disability constitutes as a "current disability" if the medical evidence reflects a diagnosis of a disability at any time during the pendency of a service connection claim, commencing from a one-year period prior to the date the Veteran filed his claim for the disability, even if the disability resolved prior to the adjudication of the claim. See 38 U.S.C. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). In this regard, medical evidence, including the December 2016 VA opinion, which the VA examiner did not consider, reflects that the Veteran has restrictive lung disease. Thus, this opinion is inadequate, as it is inaccurately based on the presence of a lung disability at the time of this examination, without regard to the December 2016 addendum opinion. At the same time, the VA examiner also reasoned that "the fact that there was no evidence of progression nor complications of the Veteran's [service-connected] rhinosinusitis that would provide evidence to support the above claim." This reasoning does not explain why the service-connected rhinosinusitis, irrespective of any lack of progression or complications, aggravates the Veteran's lung disability. In other words, even if the Veteran's service-connected rhinosinusitis does not have complications or has not progressed in severity, this rationale still does not explain why the Veteran's service-connected rhinosinusitis does not aggravate the Veteran's lung disability, without regard to the severity of the service-connected disability. In the May 2020 remand, the Board additionally acknowledged that before the Court, the Veteran raised the issue of whether the Veteran's service-connected disabilities caused or aggravated his obesity, which in turn, caused or aggravated his lung disability. Therefore, it remanded this issue for a VA examiner to render an opine on the correlation, if any, between the Veteran's service-connected disabilities, his obesity, and his lung disorder. In a June 2020 VA opinion, however, the VA examiner provided a very ambiguous opinion that was not responsive to the specific inquiries of the May 2020 remand directives, which additionally, was not supported by a clear rationale. For the remand directive instructed the Veteran to opine as to whether it is at least as likely as not that any of the Veteran's service-connected disabilities, including chronic rhino sinusitis with sinus headaches, sleep apnea, degenerative disc disease of the lumbar spine, hypertension, bilateral pes planus with bone spurs, tinnitus, kidney stones, status-post laparoscopic cholecystectomy, diabetes mellitus, peripheral neuropathy of the lower extremities, and tonsillectomy, either alone or in combination, caused him to become obese, or aggravated his obesity, whether by interfering with his ability to exercise, or otherwise. The VA examiner vaguely opined that there is a high probability that his chronic disabilities, including peripheral neuropathy and degenerative disc disease have caused his obesity due to the inability to exercise. However, the VA examiner did not make clear as to whether it was only these service-connected disabilities of peripheral neuropathy and degenerative disc disease caused his obesity, and not the other service-connected disabilities, and whether the disabilities cause the obesity individually or collectively. Additionally, the VA examiner indicated that the Veteran is diagnosed with asbestosis with related pulmonary fibrosis, in which the onset of this disability was in 2010. In this regard, he also opined that it is less likely than not this lung disorder has been otherwise aggravated by one or more of his service-connected disabilities. However, the VA examiner's finding that the Veteran has asbestosis with related pulmonary fibrosis is inconsistent with the VA examiner's January 2013 and December 2016 finding that the Veteran does not suffer from interstitial fibrosis, but rather, the Veteran is diagnosed with restrictive lung disease. Nonetheless, the VA examiner did not address, discuss, or explain these discrepancies, and furthermore, he did not render an opinion on restrictive lung disease. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion on the Veteran's lung disability. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Clearly identify all lung disabilities that are reflected in medical treatment records from December 8, 2005 (within the one year period of the Veteran filing his December 2006 claim for a lung disability) to the current period, even if the pertinent lung disability resolved. If there is a discrepancy with any previous findings on the Veteran's lung diagnoses, please identify the discrepancy and provide a clear rationale for the noted discrepancy. b. For each lung disability, opine whether it is at least as likely as not (more than 50 percent probability) that the pertinent lung disability is aggravated by his service-connected rhinosinusitis. c. Then also, opine whether it is at least as likely as not the Veteran's obesity is caused by any of the following service-connected disabilities: i. Chronic rhinosinusitis with sinus headaches; ii. Sleep apnea; iii. Degenerative disc disease of the lumbar spine iv. Hypertension v. Bilateral pes planus; vi. Tinnitus; vii. Kidney stones, status-post laparoscopic cholecystectomy; viii. Diabetes mellitus; ix. Peripheral neuropathy of the lower extremities; and/or x. Tonsillectomy d. Also, opine whether it is at least as likely as not the Veteran's obesity is aggravated by any of the following service-connected disabilities: i. Chronic rhinosinusitis with sinus headaches; ii. Sleep apnea; iii. Degenerative disc disease of the lumbar spine iv. Hypertension v. Bilateral pes planus; vi. Tinnitus; vii. Kidney stones, status-post laparoscopic cholecystectomy; viii. Diabetes mellitus; ix. Peripheral neuropathy of the lower extremities; and/or x. Tonsillectomy e. If the Veteran's obesity is caused by OR aggravated by any of the above-mentioned service-connected disabilities, please identify the specific service-connected disabilities. f. Additionally, for each lung disability, opine whether it is at least as likely as not that the pertinent lung disability is caused by his obesity. g. And also, for each lung disability, opine whether it is at least as likely as not the pertinent lung disability is aggravated by his obesity, h. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resorting to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.