Citation Nr: 21062096 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-11 028 DATE: October 6, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in November 2015. This case was previously before the Board in May 2016, March 2018, May 2019, November 2020, and April 2021 when it was remanded for further development. The matter has been returned to the Board for further appellate review. This appeal is advanced on the Board's docket pursuant to 38C.F.R. §20.902(c) (2019); 38U.S.C. §7107 (a)(2) (2012) 1. Entitlement to service connection for a back disability is remanded. VA provided the Veteran an examination in June 2021 to determine the nature and etiology of his back disability. The examiner provided a negative nexus opinion and attributed the Veteran's current back disability, in part, to "...the many more years spent working in a physically harsh environment following service than during the two years in service following the reported back injury event." See August 2021 VA Examination. The examiner further reported that had the Veteran's post-service employment been completely sedentary and he "...did not have physical exertion on his back from other means outside of work, then it could be more likely that his back condition arose from service." Id. The Veteran served on active duty from January 1966 to May 1969, began working in an aluminum processing plant after active duty, and acted as a foreman in 1973. During the examination, the Veteran reported his back pain began in 1970. Further, the record does not contain any evidence describing the nature of the Veteran's duties at the aluminum processing plant, his duties as a foreman, nor sources of physical exertion on his back outside of his duties at work. Without evidence describing the nature of the Veteran's duties at the aluminum processing plant or sources of physical exertion outside of work and a meaningful discussion of that evidence, the Board finds the nexus opinion speculative and inadequate to adjudicate the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). 2. Entitlement to service connection for a respiratory disability is remanded. VA provided the Veteran an examination in June 2021 to determine the nature and etiology of his claimed respiratory disability. The August 2021 examiner reported the Veteran does not have a current respiratory disability and appeared to suggest the prior diagnoses of asbestosis and pulmonary fibrosis were made in error; however, the examiner did not explicitly note this finding in the August 2021 Disability Benefits Questionnaire. If a VA examiner finds that there is no current disability when a claimed disability has been diagnosed during the appeal period, VA is required to obtain a medical opinion that resolves the discrepancies between the two potentially competing medical opinions, to include discussion of whether the previous diagnosis was made in error or whether the previously diagnosed condition has since resolved. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Since the August 2021 VA examiner found there was no current disability, an opinion that conforms with the holding in Romanowsky and addresses all previously diagnosed respiratory disorders and whether they were made in error or have since resolved is necessary to make an informed decision on the Veteran's claim. The Board also notes the examiner stated there was no "clear and irrefutable evidence of pulmonary fibrosis"; however, this is not the appropriate burden of proof in a claim for VA disability benefits. Rather, it is sufficient to show that it is "at least as likely as not" that the Veteran has met the criteria for a diagnosis of pulmonary fibrosis at some point during the appeal period to establish the presence of a current disability for VA compensation purposes. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician, preferably other than the June 2021 examiner, to determine whether the current back disability is related to the Veteran's military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the back disability began in or is otherwise caused by the Veteran's active service. The examiner must specifically address the Veteran's lay statements regarding continued back pain after the reported in-service accident, as well as the Veteran's November 2015 Board hearing testimony that his 1978 back surgery was due to ongoing back pain since service and not any intervening accident. The examiner should explain why these statements, in conjunction with the medical evidence of record, do or do not support a finding that the current back disability is related to service. Any rationale for a negative etiology opinion that rests solely on a lack of documented complaints in contemporaneous treatment records will be deemed inadequate. In other words, the examiner cannot dismiss the Veteran's contentions of back problems after the in-service incident solely on the basis that the back problems were not recorded in contemporaneous treatment records. The examiner should address all other pertinent evidence of record, including written lay statements from the Veteran, his family, and his acquaintances. If the examiner finds the Veteran's back disability is due to post-service factors, such as his post-service employment at an aluminum processing facility or other physical exertion on his back from means outside of work, rather than military service, the examiner must explain why the back disability would be MORE likely due to some other post-service factor rather than the in-service back injury event. The explanation for why the back disability would be more likely due to some other post-service factor must discuss the Veteran's specific circumstances, including his duties at the aluminum processing facility and the details of the "other physical exertion on his back from means outside of work". All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Obtain an opinion regarding the etiology of any current respiratory disability, to include asbestosis and pulmonary fibrosis. For each respiratory disability diagnosed at any point during the appeal period, the examiner must opine whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the current disability is related to the Veteran's military service, to include conceded asbestos exposure. If the clinician determines that the Veteran has not a had respiratory disability, including asbestosis or pulmonary fibrosis at any point during the appeal, the examiner must explain why he or she concluded that the diagnoses of asbestosis or pulmonary fibrosis reflected in the record was made in error. (Continued on the next page) If the clinician determines that there has been no current diagnosed respiratory disability at any point during the appeal, the clinician must address whether the Veteran's current respiratory symptoms result in functional loss. If the symptoms result in functional loss, the clinician must opine whether the current symptoms are at least as likely as not related to the Veteran's active-duty service, to include conceded asbestos exposure. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. The Veteran should not be scheduled for an additional examination unless deemed necessary by the selected clinician. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.