Citation Nr: 21071481 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-06 742 DATE: November 30, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as due to environmental hazards exposure in Southwest Asia is remanded. REASONS FOR REMAND The Veteran served in active-duty service with the Navy from January 2006 to October 2006 to include service in the Reserves. This matter is on appeal from a June 2015 rating decision. In an October 2020 Board decision, the Board denied entitlement to service connection for COPD. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in August 2021, issued a decision to vacate and remand the issue back to the Board for re-adjudication. The Board finds that remand is warranted for additional development. The Veteran asserts his COPD is related to his active-duty service to include as due to environmental hazard exposures during his deployment in Southwest Asia. The Veteran has reported various exposures during his active-duty service to include exposure to burn pits, CARC paint, formaldehyde, welding fumes, diesel and truck exhaust fumes, and dust in the treatment record to include at the June 2015 VA examination and a November 2018 VA medical center (VAMC) pulmonary consultation. In the June 2015 VA examination, the examiner diagnosed the Veteran COPD but did not find the Veteran's diagnosis to be related to his active-duty service to include environmental hazard exposure. The examiner note the Veteran had been exposed to the same type of occupational fumes due to his civilian work as a welder prior to his service cited an study that did not find clear evidence to indicate a causal link between environmental exposure during deployment his obstructive or restrictive lung disease. In May 2019 the Veteran's representative and Veteran submitted additional statements on exposure in service as well as articles discussing the health effects and impact of toxic fume and burn pit exposure on the respiratory system. In October 2021 the Veteran submitted another statement regarding his exposure during his job duties in service. In the August 2021 CAVC decision, the Court first noted that the Board decision found the Veteran was not exposed to burn pits and discussed some evidence of burn pit exposure; however, the Court noted the Board did not address the Veteran's report of such exposure in the June 2015 VA examination as well as the November 2018 VAMC pulmonary consultation notes of the Veteran with "a history of burn put exposure in 2006". As such, the Court found that remand was warranted for the Board the address such evidence in reevaluating whether the Veteran was exposed to burn pits. The Court next noted the Board consideration of the Veteran's challenge to the June 2015 VA examination where the examiner "did not mention upper respiratory infections, cough, phlegm production, sinusitis, dizziness, and shortness of breath" and found that "sinusitis and dizziness are not symptoms of COPD." The Court found that the Board's finding did not cite any independent medical evidence to support this conclusion and indicated the Board "may consider only independent medical evidence to support their findings." See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). As such, the Court also found remand was warranted for the Board to provide an adequate reason or bases that was supported by independent medical evidence. The Board here notes the June 2015 VA examination did not address the Veteran's statements regarding environmental exposure in service or explain why such statements were not considered. The November 2018 statements, May 2019 statements and submitted articles as well as October 2021 Veteran statements were submitted after the June 2015 VA examination and may be considered probative. The Board also notes that during the pendency of the appeal a November 2021 rating decision granted service connection for sinusitis. As such, the Board finds that remand is warranted to obtain an adequate examination and opinion on the nature and etiology of the Veteran's claimed COPD. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's chronic obstructive pulmonary disease. The complete record, to include a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Identify each current chronic obstructive pulmonary disease separate and distinct from service-connected sinusitis. If the disability existed during the appeal period but has resolved, this should be made clear. (b.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's chronic obstructive pulmonary disease arose in service or is etiologically related to his military service to include any environmental exposure such as burn pits, toxic fumes, welding, and dust experienced by the Veteran while servicing in Southwest Asia? (c.) In addressing any of the above, the VA examiner should address and discuss the June 2015 VA examination findings; the statements made by the Veteran in the June 2015 VA examination, November 2018 VAMC pulmonary consultation, May 2019, and October 2021; and the submitted May 2019 articles. The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (d.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (e.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.