Citation Nr: 21070199 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-37 242 DATE: November 23, 2021 REMANDED Entitlement to service connection for a lung condition, to include as due to exposure to aircraft fumes, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in November 2018. Entitlement to service connection for a lung condition, to include as due to exposure to aircraft fumes, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the November 2018 remand directives. See Stegall v. West, 11 Vet. App. 258, 271 (1998). Specifically, in November 2018, the Board instructed the AOJ to obtain an opinion regarding the etiology of the Veteran's diagnosed lung condition. As part of this opinion, the examiner was instructed to address the Veteran's assertion that his lung condition was related to in-service exposure to aircraft fumes. In November 2019, two VA opinions were obtained from the same examiner, each opining that the Veteran's diagnosed chronic obstructive pulmonary disease (COPD) was less likely than not related to his active duty service. However, the examiner did not discuss the Veteran's claimed exposure to aircraft fumes in either opinion. See November 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ); November 2019 VA Lung Medical Opinion DBQ. As the Board cannot find substantial compliance with the November 2018 remand directives, a remand is necessary to allow the AOJ to obtain a VA opinion regarding the etiology of the Veteran's lung condition. See Stegall v. West, supra. Even if the Board could find substantial compliance with the November 2018 remand directives, a remand would nonetheless be necessary to allow the AOJ to obtain an adequate opinion regarding the etiology of the Veteran's lung condition. As discussed above, VA opinions regarding the etiology of the Veteran's lung condition were obtained in November 2019. See November 2019 VA Medical Opinion DBQ; November 2019 VA Lung Medical Opinion DBQ. However, potentially pertinent private medical records were associated with the claims file after such opinions were obtained. See Pulmonary Associates of Corpus Christi records, received June 2020; Pulmonary Associates of San Antonio records, received June 2020; Heart Clinic of Corpus Christi records, received June 2020; University Transplant Center records, received July 2020; Dr. Covarrubias records, received July 2020. As the examiner was unable to consider the Veteran's prior medical history, the Board finds the November 2019 opinions to be inadequate and, therefore, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's lung condition. See Stefl v. Nicholson, 21 Vet. App. 102 (2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment within the Texas Valley Coastal Bend VA Healthcare System from July 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's lung condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) If an examination is conducted. Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed lung condition, to include COPD, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is asked to consider and specifically address the Veteran's contention that his lung condition is attributable to in-service exposure to asbestos and aircraft fumes, and that he first experienced shortness of breath approximately one year after separation from service. See January 2015 Notice of Disagreement. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.