Citation Nr: 21071602 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-01 657 DATE: November 30, 2021 REMANDED Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in January 2021. In March 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See March 2020 Board Hearing Transcript. Entitlement to service connection for a respiratory condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is 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 January 2021 remand directives. See Stegall v. West, 1 Vet. App. 368 (1998). Specifically, in January 2021, the Board instructed the AOJ to obtain any outstanding VA medical records, to include records from Cleveland VA Medical Center (VAMC) from July 2009 to current, Augusta VAMC from October 2015 to current, Dublin VAMC from May 2016 to current, and Atlanta VAMC from December 2017 to current. If any records were unable to be secured, the AOJ was instructed to notify the Veteran of such, as required by 38 C.F.R. § 3.159(e). The record indicates that the AOJ requested such records in January 2021. See January 2021 Atlanta VAMC Records Request; January 2021 Augusta VAMC Records Request; January 2021 Cleveland Records Request. The record also indicates that records from Dublin VAMC were associated with the claims file, but that records relating to treatment from Cleveland VAMC, Augusta VAMC, and Atlanta VAMC were unobtainable. See id; Dublin VAMC records, received January 2021 in CAPRI. However, while the record indicates that the Veteran was notified that the AOJ was unable to obtain records relating to treatment at Augusta VAMC, there is no indication that the Veteran was informed that records relating to treatment at Cleveland VAMC from July 2009 to current, and at Atlanta VAMC from December 2017 to current, could not be obtained. See April 2021 VA Correspondence. As the Board cannot find substantial compliance with the January 2021 remand directives, a remand is necessary to allow the AOJ to notify the Veteran that certain VA treatment records could not be obtained. See Stegall v. West, supra. Even if the Board could find substantial compliance with the January 2021 remand directives, a remand is warranted nonetheless to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's respiratory condition. In August 2021, the Veteran underwent a VA examination in which the examiner noted diagnoses of chronic obstructive pulmonary disease and emphysema. However, the Veteran's VA treatment records indicate that, in addition to COPD and emphysema, the Veteran has diagnoses of chronic small airways disease, nocturnal dyspnea with hypoxemia, and chronic airway obstruction. See Atlanta VAMC records, received December 2017 in CAPRI. Given the additional diagnosis, the examiner should have addressed these other disabilities. Moreover, the August 2021 examiner did not provide an etiological opinion regarding the Veteran's diagnosed chronic small airways disease, nocturnal dyspnea with hypoxemia, or chronic airway obstruction. See August 2021 VA Medical Opinion. As such, the opinion cannot be deemed adequate to the extent it did not provide an opinion. For these reasons, the Board finds the August 2021 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's respiratory condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. Pursuant to 38 C.F.R. § 3.159(e), notify the Veteran that records relating to treatment at the Cleveland VAMC from July 2009 to current, and at Atlanta VAMC from December 2017 to current, could not be obtained. 2. 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 at Dublin VAMC from September 2021 to current. Pursuant to 38 C.F.R. § 3.159(c), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any records are unable to be secured. 3. After completing the development above, and any additional development warranted by the record, return this matter to the August 2021 examiner and obtain an addendum opinion regarding the nature and etiology of the Veteran's claimed upper respiratory condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the August 2021 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. 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 respiratory condition, 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, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's diagnoses of COPD, emphysema, chronic small airways disease, nocturnal dyspnea with hypoxemia, and chronic airway obstruction. ii. The Veteran's lay history; and iii. The Veteran's in-service treatments for upper respiratory infections in November 1972 and October 1973. 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. 4. 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.