Citation Nr: 21073061
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 14-31 479A
DATE: December 7, 2021

REMANDED

Entitlement to service connection for a respiratory disorder, to include reactive airway disease and chronic obstructive pulmonary disease (COPD), is remanded.

REASONS FOR REMAND

The Veteran served in the U.S. Army from October 1967 to October 1970.  

He testified before the undersigned Veterans Law Judge (VLJ) in April 2019.  The claims file contains a transcript of the hearing.

In an August 2021 Board Decision, the above-referenced claim was remanded to the RO for further evidentiary development and readjudication.  The RO has not substantially complied with the Board's remand instructions, so another remand is necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance).

The October 2021 VA examination provided to the Veteran pursuant to the Board's August 2021 remand instructions included an alternative diagnosis of the Veteran's subjective symptoms, specifically chronic obstructive pulmonary disease (COPD).  See also February 2021 JMR (directing the Board to obtain an opinion regarding whether the Veteran has a respiratory disorder, to include reactive airway disease).  A Veteran's claim is for disabling effects of his alleged symptoms rather than a particular diagnosis.  See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009).  Therefore, the Veteran's claim reasonably encompasses the current diagnosis of COPD.  

Although the examiner addressed whether the diagnosed COPD was related to exposures to herbicide agents and/or other exposures (e.g., creosote), the examiner did not discuss the possibility, raised by the record, that the Veteran's service-connected diabetes caused or has aggravated his COPD.  See October 2019 Private Opinion ("[D]iabetes is also a common comorbidity of reactive airway disease and COPD.  The lung function decline in patients with diabetes may well be a direct consequence or diabetes itself."; but failing to directly address whether this Veteran's diabetes caused or aggravated his COPD).

There are no adequate opinions on this issue, so remand to obtain an adequate opinion is necessary.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period from July 2021 to the Present.

2. Obtain an addendum opinion regarding:

a.	Whether the Veteran's COPD is at least as likely as not due to his in-service exposures, to include herbicide agents (e.g., Agent Orange) and other potential toxins (e.g., creosote);

b.	If the answer to (a) is negative, whether the Veteran's COPD is at least as likely as not proximately due to his service-connected disability, particularly including diabetes;

c.	If the answer to (a) is negative, whether the Veteran's COPD has been aggravated beyond its natural progression by service-connected disability, particularly including diabetes.

It would be helpful if, in answering these questions, the examiner discussed areas of agreement and disagreement with the October 2019 Private Opinion to include the medical literature cited therein to support the contentions that the Veteran's COPD may be related to exposure to herbicide agents, exposure to creosote, and/or his diabetes mellitus.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kerry Hubers

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.