Citation Nr: 21065176 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-38 288A DATE: October 25, 2021 REMANDED Entitlement to service connection for bronchitis, to include as due to asbestos exposure, is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right and left knee disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1977 to January 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction of this appeal is currently with the RO in St. Petersburg, Florida. This case was most recently before the Board in November 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In his November 2014 substantive appeal, the Veteran indicated he wanted a Board hearing by live videoconference. In a December 2018 letter, VA informed the Veteran that the videoconference hearing was scheduled for February 2019. However, the Veteran failed to appear as scheduled. As the Veteran was properly notified of the time, date, and location of his scheduled hearing and failed to appear, his hearing request is deemed withdrawn. An August 2021 rating decision granted the Veteran's claim for service connection for right hip limitation of extension, right hip limitation of abduction, adduction and rotations and right hip limitation of flexion and assigned an initial rating for each disability. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service Connection Claims The Board notes that the Veteran has consistently asserted that he has bronchitis as a result of his active service and the Veteran has consistently asserted that he has a lumbar spine disorder that was caused or aggravated by his service-connected knee disabilities. In that regard, he asserts that he has bronchitis due to asbestos exposure while serving as an engineer on ships and that asbestos covered all of the plumbing and electrical pipes that he worked on. See November 2014 VA Form 9. The Board notes that the Veteran was stationed on the U.S.S. Elliot and U.S.S. Oldendorf during his military service. Moreover, the Board notes the Veteran has a diagnosis of acute bronchitis in January 2003. Further, the Veteran indicated he had swollen or painful joints during active service. See December 1980 separation examination report and the medical evidence indicates the Veteran has a current diagnosis of chronic low back. Moreover, the Board notes that service connection is currently in effect for bilateral knee disorders. Thus, the November 2020 Board concluded that the Veteran should be afforded a VA examination to determine the nature and etiology of any current bronchitis and a lumbar spine disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded the directed VA examinations in August 2021. At that time, the VA examiner diagnosed chronic bronchitis and lumbosacral strain. The examiner opined that the Veteran's chronic bronchitis and lumbosacral strain were less likely than not etiologically related to his active service. In this regard, the examiner noted that, after reviewing medical records and performing a physical examination, it was less likely than not that his bronchitis, to include asbestos exposure, was caused during service or its onset during any period of service, or was otherwise related to such period of service because there were no medical records showing a diagnosis of, or treatment for bronchitis, to include asbestos exposure while the Veteran was still in service. With regard to lumbosacral strain, the examiner noted that, after reviewing medical records and performing a physical examination, it was less likely than not that his lumbosacral strain was caused during service or its onset during any period of service, or was otherwise related to such period of service as there were no medical records showing diagnosis of, or treatment for the lumbar spine disorder or any related condition while the Veteran was still in service. Additionally, the examiner opined that such disorder was less likely as not caused or aggravated by his service-connected bilateral knee disabilities because there is no medical pathophysiologic relationship between the lumbar spine disorder and the bilateral knees; furthermore, the examiner noted there are no records showing a relationship between the back and knees. The Board determines the August 2021 VA opinions insufficient to decide the claims. In this regard, the August 2021 examiner did not adequately address nor consider the Veteran's lay statements and contentions regarding the onset and continuity of his symptoms, nor did the examiner provide supporting rationale for the conclusions reached. Rather, the VA examiner merely provided conclusory statements that such disorders were not related to service. Moreover, the June 2021 VA opinions relied solely on the absence of diagnosis and treatment for an acquired bronchitis and/or a lumbar spine disorder during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). However, as noted above, the Veteran reported painful or swollen joints during active service, and indicated he had asbestos exposure during his time on the U.S.S. Elliot and U.S.S. Oldendorf. Therefore, the Board finds that new VA medical opinions are warranted to address the nature and etiology of the bronchitis and lumbar spine disorder. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). The matters are REMANDED for the following action: 1. Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed bronchitis. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for further in-person physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: Is it at least as likely as not (50 percent or greater probability) that his bronchitis had its onset during any period of service, or is otherwise related to such period of service? The examiner must fully address the Veteran's lay statements and contentions, to include that his bronchitis is as a result of asbestos exposure during active service. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed lumbar spine disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for further physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that his lumbar spine disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner must fully address the Veteran's reports of swollen or painful joints in December 1980. (B) Is it at least as likely as not (50 percent or greater probability) that his lumbar spine disorder was caused, or aggravated by his service-connected right or left knee disabilities? The examiner must fully address the Veteran's lay statements and contentions. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.