Citation Nr: 21067506 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 11-22 829 DATE: November 4, 2021 REMANDED Entitlement to service connection for a respiratory disorder other than service-connected bronchitis is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office. In July 2016, the Board remanded the issue on appeal for additional development and, in January 2018, denied service connection for pneumonia. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the parties to this appeal (VA and the Veteran) entered into a Joint Motion for Remand (JMR), which vacated and remanded the January 2018 decision. In an order issued the following month, the Court granted the parties' JMR. In January 2019, October 2020, and July 2021, the Board again remanded the claim for additional development it now returns for further appellate review. Additionally, the Board notes that the Veteran originally filed service connection claims for pneumonia. The Board notes that the Veteran has diagnoses of chronic obstructive pulmonary disease (COPD) and pneumonia. Therefore, such has been recharacterized as single claim in light of Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). 1. Entitlement to service connection for a respiratory disorder other than service-connected bronchitis is remanded. In a June 2021 VA treatment records, the Veteran reported receiving treatment from a private pulmonologist. A remand is required to allow VA to obtain authorization and request these relevant records. As private treatment records were not available at the time of the August 2021 VA opinion, the Board finds a new VA opinion is ncessary to determine whether any diagnosed respriatory disorder, other than service-connected bronchitis, is caused or incurred in active service. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim 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 to include any private pulmonologist. 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, forward the record, to include a copy of this Remand, to an appropriate VA clinician for an addendum opinion addressing the etiology of the any of the Veteran's respiratory disorders other than service-connected bronchitis. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has pneumonia or any other respiratory disorder to include COPD as a result of active service or that was incurred during service and has persisted since service, to include as due to an in-service diagnosis of bronchitis? The examiner should be aware that the Veteran is not legally precluded from being awarded service connection for pneumonia in addition to his service-connected bronchitis (for example, if in-service symptoms later manifest as two different post-service disabling conditions, the law provides that both conditions will be service connected and it is the concern of the rating specialist to ensure the conditions are compensated in a way that avoids pyramiding). Therefore, the examiner should not consider the fact that the Veteran is already service-connected for bronchitis as a being a bar to providing an opinion about whether any respiratory disorder may be related, in any way, to service. The examiner must consider and discuss the medical and competent lay evidence of record, to include the notations of "Hx of pneumonia" and "recurrent pneumonia" in the Veteran's VA treatment records, and his respiratory complaints in April 1980, February 1984, August 1985, March 1992, December 1994, October 2010, and December 2012 as detailed above. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner must provide a complete rationale for any opinion offered. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.