Citation Nr: 21068033 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 09-32 130 DATE: November 8, 2021 REMANDED Entitlement to service connection for a respiratory disorder to include asthma, bronchitis, interstitial lung disease, and mild restrictive lung disease is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an April 2013 hearing. A transcript of the hearing is associated with the Veteran's claim file. This matter was previously before the Board in August 2013, March 2016, July 2017, February 2018, July 2020, and most recently in April 2021. The matter has been returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for a respiratory disorder to include asthma, bronchitis, interstitial lung disease, and mild restrictive lung disease is remanded. In July 2020, the Board found that the April 2019 VA medical opinion did not address direct service connection, secondary service connection, or whether any of the conditions pre-existed service. The Board also found that the May 2019 VA medical opinion offered an opinion that the Veteran's interstitial lung disease developed while he was in service, but there was no rationale to support the conclusion. The May 2019 medical opinion also did not address whether the restrictive lung disease was at least as likely as not caused by service nor was there an opinion regarding asthma and whether the condition clearly and unmistakably pre-existed service. The July 2020 Board decision also found that the March 2020 VA opinion was inadequate as the opinion addressed direct service connection for the diagnosis of bronchitis but did not consider any other basis for direct service connection for the Veteran's respiratory disabilities, to include whether the disabilities are a result of an immune response that first manifested in service or that the Veteran was exposed to freon and isopropyl alcohol during his service. As a result of the deficiencies noted in the previous VA medical opinions, the July 2020 Board decision remanded the issue for an addendum medical opinion regarding whether the Veteran's respiratory disabilities may be related to exposure to hazardous material or as a result of an autoimmune disease that first began during service. Additionally, the Board found that there was no opinion which addressed whether the Veteran's respiratory conditions have been temporarily aggravated by his service-connected sarcoidosis or gastritis. The Veteran had testified that he had been told by his physicians that his respiratory conditions are related to his sarcoidosis and that it will be worse at times and then clear up. See April 2013 Board hearing transcript at pg. 14. The RO obtained addendum medical opinions in October 2020. The VA examiner found that the Veteran has diagnoses of asthma, interstitial lung disease, and mild restrictive lung disease. He opined that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that the medical record review was negative for treatment of any acute or chronic respiratory condition from time of military discharge to current day. He also opined that it is less likely than not that any such disability is related to the Veteran's military service, to include whether any such respiratory disorder is related to an autoimmune disease or response that is a result of his service. He also stated that the medical record review did not reveal evidence for exposure to environmental hazards, including freon and isopropyl alcohol as noted in December 17, 1990, to negatively impact and cause chronic respiratory problem. Additionally, regarding secondary service connection, the VA examiner opined that the sarcoidosis and gastritis are not related to the other listed respiratory conditions including asthma, interstitial lung disease, and mild restrictive lung disease. He also opined that it is less likely than not that any of the respiratory disorders identified by the examiner was aggravated by his service-connected gastritis or sarcoidosis. The Board found the October 2020 medical opinion inadequate as the VA examiner based his opinion on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). The VA examiner stated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness and stated that the medical record review was negative for treatment of any acute or chronic respiratory condition from time of military discharge to current day. However, the Veteran's service treatment records noted that the Veteran had various complaints and treatments for respiratory symptoms during service such as the documented records from January 1990, September 1991, and January 1993. Also, post-service treatment records show that the Veteran had various respiratory problems throughout the appeal period. Moreover, the VA examiner did not provide a complete rationale for the opinions rendered, particularly regarding whether the conditions are related to an autoimmune disease and exposure to freon and isopropyl alcohol. He also did not provide rationale regarding secondary service connection and aggravation. The VA examiner found that the respiratory conditions were less likely than not related to his military service, to include as due to an autoimmune disease or related to exposure to freon and isopropyl alcohol. He also concluded that the respiratory disorders were less likely than not aggravated by his service-connected gastritis or sarcoidosis. There was no rationale for any of these opinions to support his conclusions. Addendum opinions were obtained in June 2021. The examiner noted the Veteran's separation examination was negative for a respiratory or sarcoidosis condition; however, there was a potential exposure to environmental hazards, including presumed exposure to freon and isopropyl alcohol as noted in the December 1990 occupational health clinic medical surveillance history entry. The examiner noted a January 2021 medical note showed the Veteran was negative for treatment of acute or chronic respiratory conditions. The examiner stated that while the March 2019 examination documented a diagnosis of asthma, interstitial lung disease, mild restrictive lung disease, and non-pulmonary sarcoidosis the chest X-ray and pulmonary function test were normal. The examiner stated the Veteran did not have current and consistent evidence of an acute or chronic respiratory condition and there was no evidence for respiratory sarcoidosis. Therefore, the examiner opined is was less likely than not that the respiratory disability had an onset in service or was otherwise related to military service, to include whether any such respiratory disability was related to an autoimmune disease or response that was a result of his service and to include whether any such respiratory disability was due to exposure to environmental hazards including presumed exposure to Freon and isopropyl alcohol as noted in the December 1990 occupational health clinic medical surveillance history entry. For the same reasons the examiner opined it was less likely than not that the respiratory disability was at least as likely as not caused by the Veteran's service-connected disabilities, to include his gastritis and sarcoidosis and it was less likely than not that the respiratory disability was at least as likely as not caused by, or aggravated by the Veteran's service-connected disabilities, to include his gastritis and sarcoidosis. Later that month the examiner was requested to specifically address the findings of the December 2012 VA pulmonary treatment note that indicated the Veteran's sarcoid showed a mild to trace uptake in the lungs as well as any other relevant post-service treatment records. The examiner stated that the PET scan in September 2016 was negative for evidence of active sarcoid disease and that the Veteran currently did not have active respiratory sarcoidosis. The Board finds the June 2021 medical opinion inadequate as the VA examiner based his opinion on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). The VA examiner stated examiner stated the Veteran did not have current and consistent evidence of an acute or chronic respiratory condition. However, the Veteran's service treatment records noted that the Veteran had various complaints and treatments for respiratory symptoms during service such as the documented records from January 1990, September 1991, and January 1993. Also, post-service treatment records show that the Veteran had various respiratory problems throughout the appeal period. When specifically requested to consider the December 2012 treatment record that noted "sarcoid: mild to trace uptake in lungs" the examiner noted a September 2016 PET scan that showed the Veteran was negative for evidence of active sarcoid disease and stated that the Veteran currently did not have active respiratory sarcoidosis. While the examiner did address whether the Veteran had a present-day diagnosis of a respiratory disability, an adequate opinion as to any diagnosis for a respiratory disability during the appeal period was not provided by the examiner. Accordingly, the Board finds that an additional VA medical opinion is needed to adequately address the Veteran's claim for service connection for respiratory conditions. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain an addendum opinion from the VA provider who issued the June 2021 medical opinion for respiratory conditions (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran for the respiratory condition is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: (a.) The examiner should identify all respiratory conditions diagnosed at any point relevant to his claim (i.e., since August 2007), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. The examiner should note a May 2013 examiner and a July 2016 examiner noted a 2008 diagnosis of mild restrictive lung disease and a May 2019 examination showed a pre-military diagnosis of asthma, a 2006 diagnosis of restrictive lung disease, a 2006 diagnosis of non-pulmonary sarcoidosis, and a 2007 diagnosis of interstitial lung disease. (b.) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the respiratory disability had an onset in service or was otherwise related to military service, to include whether any such respiratory disability is related to an autoimmune disease or response that is a result of his service. In this regard, the examiner should specifically acknowledge that the Veteran's sarcoidosis has been found to have had its onset during service. (c.) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the respiratory disability had an onset in service or was otherwise related to military service, to include whether any such respiratory disability is due to exposure to environmental hazards, including presumed exposure to freon and isopropyl alcohol as noted in a December 17, 1990 occupational health clinic medical surveillance history entry. (d.) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the respiratory disability is at least as likely as not caused by, or aggravated (i.e., worsened) by the Veteran's service-connected disabilities, to include his gastritis and sarcoidosis. Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. The examiner must address the service treatment records from January 1990, September 1991, and January 1993 noting various complaints and treatment of respiratory symptoms. The examiner is also requested to specifically address the findings of the December 2012 VA pulmonary treatment that indicates "sarcoid: mild to trace uptake in lungs" and any other relevant post-service treatment records. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gastoukian, Kelly 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.