Citation Nr: 21069056 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 13-20 098 DATE: November 17, 2021 REMANDED Entitlement to service connection for a respiratory condition, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to August 1971. The Veteran died in October 2014. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has previously come before the Board. In August 2019, the Board remanded this issue for an addendum opinion to be rendered discussing secondary service connection including consideration of both causation and aggravation. Later that month, such an opinion was associated with the claim file. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a respiratory condition, to include as secondary to service-connected disabilities, is remanded. The appellant seeks service connection for her late husband's respiratory condition, including as secondary to service-connected disability. In October 2010, the Veteran's representative submitted a claim for service connection for chronic obstructive pulmonary disease (COPD), arguing that the Veteran's lung capacity was limited due to restrictions caused by his service-connected ankylosing spondylitis. The Veteran's back condition is well documented throughout the medical record, with evidence showing that the Veteran's spine was significantly ankylosed, and his movement was thus highly limited. Of note, the representative cited to an August 2010 note in the Veteran's record in which the doctor stated that the Veteran's COPD and ankylosing spondylitis were probably each contributing to a measured drop in forced vital capacity (FVC). However, the Board observes that the doctor did not find the COPD condition to have been caused or aggravated by the back condition, and instead indicated that the two conditions together caused a drop in FVC. See December 2010 VA Medical Treatment Record, p. 4 (Aug. 20, 2010 record). Upon a VA examination in November 2010, the examiner found that the Veteran's breathing was likely restricted at least in part due to his ankylosing spondylitis. However, this restriction was independent from the diagnosis of COPD, which was more likely caused by emphysema type changes due to tobacco use over 30 years. COPD could not be attributed to the spondylitis condition because the Veteran's breathing had been shown to improve with bronchodilator medications. Those medications would not have had any impact on the restrictions caused by the Veteran's back problems. Since those medications were effective, the examiner found that the back problems were less likely than not the cause of COPD. The examiner wrote more generally that the Veteran's "breathing difficulties" were due to a combination of (in order of significance) (1) coronary artery disease; (2) emphysema changes over time with smoking tobacco use; and (3) ventilation restrictions caused by obesity and ankylosing spondylitis. See November 2010 VA Examination. In July 2019, the Appellant's representative provided an article from the website Ankylosing Spondylitis News, which cited to recent research and discussed "an association between" ankylosing spondylitis and COPD. The article stated plainly that ankylosing spondylitis was an independent risk factor associated with COPD. See July 2019 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). In November 2019, the Board remanded the claim for a new VA examination and opinion to address service connection as due to aggravation by another service-connected disability as well as causation by another disability. In November 2019, a VA examiner wrote opinions based upon review of the Veteran's medical record, finding no link between COPD and the Veteran's back disabilities. The examiner's opinion walked a fine line, finding that both ankylosing spondylitis and COPD can impair lung function, and therefore "symptoms would be worse [for a person] having both conditions." Yet, the same two conditions do not directly affect one another because ankylosing spondylitis is an orthopedic condition while COPD is a pulmonary condition. See November 2019 Compensation and Pension Examination. However, the examiner in November 2019 did not discuss the information provided from the Ankylosing Spondylitis News website. Thus, the examiner's opinion does not demonstrate consideration of the full record. Furthermore, the examiner's finding that there is no medical relationship between ankylosing spondylitis and COPD is directly contradicted by this very article, which plainly notes that ankylosing spondylitis can be a risk factor for COPD. The appellant and her representative have requested an opinion by a specialist due to the complexity of this case, including a request for an independent medical expert pursuant to 38 U.S.C. § 5109. Under 38 U.S.C. § 5109(a), VA may obtain an advisory medical opinion from an independent medical expert from outside the Department based upon the medical complexity or controversy of a particular case. Here, at this point in time, the Board does not find unique complexity in the appeal. The VA opinion rendered in 2010 was deemed inadequate because it did not properly address each of the considerations for secondary service connection required by law, but not because the examiner was unable to render complex opinions. The 2019 opinion is inadequate because the examiner did not review the entire record, to include consideration of the article from the Ankylosing Spondylitis News website. There is no indication that the claim is of such complexity that an independent medical expert's opinion need be obtained. However, the Board is persuaded that an opinion from a respiratory specialist is necessary to facilitate the Board's understanding of the relationship between ankylosing spondylitis and breathing difficulties, including COPD. The November 2010 VA examiner attributed generalized "breathing difficulties" to the Veteran's ankylosing spondylitis, even though COPD itself was not attributed to the back condition. Yet the examiner did not identify any other diagnoses for breathing issues. Moreover, the examiner identified that coronary artery disease contributed to the Veteran's breathing difficulties. The Veteran was service-connected for coronary artery disease since August 2000. Upon remand, the examiner should more broadly address service connection for a respiratory condition, including consideration of secondary service connection from not only the Veteran's back condition, but also from other service-connected conditions including coronary artery disease. This matter is REMANDED for the following action: 1. Obtain an addendum opinion from a pulmonologist or other appropriate respiratory specialist. The respiratory specialist is to indicate review of the complete claim file, including this Remand and the article submitted in the July 30, 2019 Appellate Brief entitled "Ankylosing Spondylitis Patients More Likely to Develop COPD." The examiner is to provide opinions addressing the following: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran's COPD was caused by his service-connected ankylosing spondylitis, or any other service-connected disability, to include coronary artery disease? (b.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran's COPD was aggravated by his service-connected ankylosing spondylitis, or any other service-connected disability including coronary artery disease? (c.) Is it at least as likely as not (approximately 50 percent or greater probability) that any diagnosed respiratory condition other than COPD was caused or aggravated by the Veteran's service-connected ankylosing spondylitis, or any other service-connected disability including coronary artery disease? **Please specifically address the article entitled "Ankylosing Spondylitis Patients More Likely to Develop COPD." See 7/30/2019 Appellate Brief, at 9-13.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.