Citation Nr: 21063177 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 14-39 260 DATE: October 13, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and/or asbestosis, to include as due to asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1954 to April 1958. Unfortunately, he died in April 2015, while the current appeal was pending. His surviving spouse has been substituted as the appellant for purposes of processing the claim to completion. See 38 U.S.C. § 5121A. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. This case was previously before the Board in September 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The evidence of record indicates that the appellant is seeking service connection for a respiratory disability. In light of her assertions and the evidence of record, the Board has recharacterized the issue on appeal to more broadly encompass her claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of the record); Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (applying those principles to non-psychiatric conditions). In June 2021, the Board wrote the appellant to clarify whether she wished to attend a Board hearing in connection with her appeal. She did not respond. If her claim remains denied following the development sought below, and the case is returned to the Board, she may request a hearing at that time, if she wishes to do so. Entitlement to service connection for a respiratory disability, to include COPD and/or asbestosis, is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant's claim and to afford her every possible consideration. The appellant seeks to establish service connection for a respiratory disability. She contends, in essence, that the Veteran had a respiratory disability that was related to in-service exposure to asbestos. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Here, the Veteran's in-service exposure to asbestos has been conceded, as has the presence of a respiratory disability. A VA medical opinion was procured in 2012 in an effort to assess the etiology of the Veteran's disability. However, the Board found in its September 2018 remand that the opinion was inadequate for purposes of adjudication. Pursuant to the Board's remand, another medical opinion was procured in March 2019. Following review of the evidence, the examiner found that the Veteran's diagnosis of COPD was less likely than not related to an in-service injury, event, or disease, to specifically include asbestos exposure. The examiner conceded the Veteran's exposure to asbestos, also noting that he was exposed to fumes and other noxious agents during service, but attributed his COPD to a lengthy and extensive smoking history (up to 26-30 packs/year). The examiner noted that cigarette smoking was known as the most important risk factor for COPD and that the Veteran smoked for a considerably longer period of time as compared to his period of asbestos exposure in service. Significantly, the examiner also noted that "[t]here is sufficient information to conclude that the veteran had asbestosis . . . ." In so doing, however, the examiner did offer a specific opinion as to whether it was at least as likely as not that the Veteran had asbestosis that was related to his service and, if so, whether it was also at least as likely as not that the asbestosis caused or aggravated the COPD. Because the examiner did not address the entire scope of the appellant's claim, as presently expanded, an addendum medical opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to either provide an examination or to obtain a medical opinion, it must ensure that the examination or opinion is adequate). This matter is REMANDED for the following action: 1. Make arrangements to provide the record on appeal to the VA examiner who previously offered an opinion with respect to the etiology of the Veteran's respiratory disability in March 2019. After reviewing the record, the examiner should offer an opinion as to whether the Veteran had a respiratory disability other than COPD, to include asbestosis, and, if so, whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that a respiratory disability other than COPD had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include as a result of his in-service exposure to asbestos. In doing so, the examiner should discuss the medical significance, if any, of the report of an October 2011 CT scan indicating, among other things, that calcific plaques were noted to be present in relationship to the diaphragms, bilaterally, consistent with asbestos exposure. The examiner should also consider that the Veteran's in-service exposure to asbestos has been conceded. If it is the examiner's conclusion that it is at least as likely as not that the Veteran had a respiratory disability other than COPD that had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include as a result of his in-service exposure to asbestos, the examiner should offer a further opinion as to whether it is also at least as likely as not that such disability (a) caused or (b) aggravated the Veteran's COPD. If the March 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion requested, arrange to obtain the requested information from another qualified examiner. A complete rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.