Citation Nr: 21073231 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-13 966 DATE: December 7, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND Entitlement to service connection for a respiratory disability is remanded. The Veteran had active service from August 1960 to May 1964. These matters originate from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters return to the Board of Veterans' Appeals (Board) following a June 2021 Board remand. The Board issued the June 2021 remand pursuant to the terms of a November 2020 order by the Court of Appeals for Veterans Claims (CAVC) implementing a Joint Motion for Partial Remand (JMPR) by the Veteran and VA. In June 2021 the Board directed, in pertinent part, that the RO obtain all VA treatment records for the period from April 2016 to February 2019. The RO was also directed to obtain an addendum VA medical opinion that addressed the nature and etiology of any respiratory disabilities diagnosed at any point during the period on appeal. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has not been substantial compliance with its June 2021 remand directives. No VA treatment records from the period from April 2016 to February 2019 have been associated with the claims file. Accordingly, there has not been substantial compliance with the Board's June 2021 remand directives and an additional remand is required. A VA examination and medical opinion was obtained in September 2021, discussed further below. However, as the examination and opinion were obtained without the benefit of the April 2016 to February 2019 VA treatment records, it is inadequate on its face. Further, the Board finds that the September 2021 VA examination and opinion is substantively inadequate. The September 2021 VA examiner opined that the Veteran had no respiratory disabilities at the time of the examination, stating that past diagnoses of chronic obstructive pulmonary disorder (COPD) and lung nodules or granuloma had resolved. Based on this, the examiner provided a negative response as to any relationship between the Veteran's period of active service and his claimed disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence of a current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The Veteran filed his claim of service connection for a respiratory disability in October 2010. An October 2010 VA treatment record reflects a medical imaging study showing a right lung calcified granuloma; two right lung noncalcified nodular densities; and a left lung noncalcified nodular density. 01/12/2011, Medical Treatment Record Government Facility, p. 8. An April 2016 private treatment record reflects a pulmonary function analysis interpretation of a moderate obstructive lung defect. 08/22/2019, Medical Treatment Record Non-Government Facility, p. 2. In light of the foregoing, the Board finds that the evidence reflects that the Veteran may have had one or more diagnosed respiratory disabilities during the period on appeal. Accordingly, a VA medical opinion that there is no nexus between active service and a claimed disability based solely on the premise that disabilities diagnosed during the period on appeal had resolved by the time of the VA medical examination is inconsistent with applicable law, and therefore inadequate. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). If it is the examiner's opinion that the presentation and/or purported resolution of such disabilities is evidence that they are not etiologically related to the Veteran's service, then the medical principles underlying that conclusion must be articulated. In light of the foregoing, the Board finds that the Veteran's respiratory disability claim should be remanded to ensure substantial compliance with the June 2021 Board remand order and the November 2020 CAVC order implementing the JMPR between the Veteran and VA. The matters are REMANDED for the following action: 1. Obtain all VA treatment records from the period from April 2016 to February 2019. 2. Following the completion of Remand Directive #1, forward the claims file, including this remand, to the examiner who provided the September 2021 opinion. If the September 2021 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should respond to the following: (Continued on the next page) (a.) identify any diagnosed respiratory disabilities present since October 2010, even if currently resolved, and provide an addendum opinion as to the nature and etiology of any diagnosed respiratory disabilities extant at any point during the period on appeal, to include whether they are at least as likely as not the result of conceded exposure to asbestos, JP4 jet fuel, aviation gasoline, aviation oil, aviation hydraulic oil, deicing fluids, auto gasoline, phosgene, carbon tetrachloride, and chlorobromomethane. The examiner should specifically address the literature submitted by the Veteran in December 2020reflecting a relationship between respiratory disabilities and exposure to carbon tetrachloride and chlorobromomethane. (b.) whether it is at least as likely as not that the Veteran's currently diagnosed lung nodules, or any other current respiratory disability, are the result of, or related to, any in-service respiratory infections. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.