Citation Nr: 21073666 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-04 241 DATE: December 9, 2021 ORDER Entitlement to service connection for a respiratory disability is granted. Entitlement to service connection for a right hip disability is dismissed. FINDINGS OF FACT 1. The Veteran's respiratory disability is etiologically related to active service. 2. In March 2020, pursuant to the Board's remand instructions, the Veteran was asked to clarify whether their claim for a hip disability was in regard to the left hip or right hip. 3. In an August 2020 letter, the Veteran was asked to clarify whether they would like their claim of entitlement to service connection for a right hip injury to be reconsidered. 4. In November 2020, the Veteran was sent a Supplemental Statement of the Case (SSOC) which stated that they had not provided a response to the Board's March 2020 inquiry pertaining to clarification of their claimed hip disability. 5. Since the March 2020 Board remand, the Veteran has failed to submit the requested information necessary to properly adjudicate their claim for entitlement to service connection for a right hip disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). 2. The Veteran abandoned the claim by failing to submit the information required to properly adjudicate their claim within one year of the request. 38 U.S.C. § 5103 (2018); 38 C.F.R. § 3.158(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1990 to July 1990 and November 1990 to May 1991, with additional service in the Army National Guard of Illinois. This case comes before the Board of Veterans' Affairs (Board) on appeal of an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. This case was previously before the Board in March 2020, at which time the issues on appeal were remanded for further development. The case has now been returned to the Board for further appellate action. Service Connection Respiratory Disability The Veteran asserts that the claimed respiratory disability is related to active service. Specifically, the Veteran asserts that the claimed respiratory disability resulted from exposure to burn pits and heavy smoke while performing duties in Southwest Asia. The Veteran's service treatment records (STRs) reveal complaints of chest pain in June 1990, which were assessed as an occasional productive cough. Another June 1990 treatment note from Dr. S.L, noted that the Veteran was diagnosed with an upper respiratory infection and chest wall pain. On a May 1991 Southwest Asia redeployment medical evaluation, the Veteran indicated she had a cough or sinus infection. In a May 1991 Southwest Asia occupational hazard questionnaire, the Veteran noted exposure to oil fires or oil fumes in Kuwait and duties related to field sanitation. In a November 2018 annual evaluation, the Veteran was assessed to have some congestion when coughing and mild wheezing. In September 2020, the Veteran was afforded a VA examination for respiratory conditions. At that time, the Veteran reported exposure to oil fires and black smoke in Southwest Asia that resulted in coughing up "black crap" and being unable to breathe in as much air as before. The VA examiner noted that the Veteran had a diagnosis of emphysema and a history of smoking. However, the VA examiner opined that Veteran's respiratory condition was at least as likely as not incurred in or caused by active service. The VA examiner reasoned that the Veteran had no history of lung problems prior to service and experienced shortness of breath since her deployment. Additionally, the September 2020 VA examiner highlighted two medical articles. The first article referenced the association between cigarette smoke as a major cause of sterile inflammation and pulmonary emphysema. The second article referenced the effect of carbon black (CB) in smokers and non-smokers. The VA examiner noted that CB was a universal constituent of smoke from the incomplete combustion of organic material. The VA examiner noted that the second article found that insoluble nanoparticulate carbon black (nCB) accumulated in the human myeloid dendritic cells from the emphysematous lung and presented cells that resembled mice exposed to smoke. The VA examiner also noted that nCB intranasal administration induced emphysema in mouse lungs. Further, the VA examiner reported that the second article found that nCB caused, among other things, emphysema and explained adverse health outcomes seen in smokers, while implicating the dangers of nCB exposed in non-smokers. Therefore, the VA examiner concluded that it was at least as likely as not that the Veteran's emphysema was from the black smoke during the deployment. In a subsequent November 2020 addendum opinion, a VA examiner opined that there was no evidence to suggest that the Veteran's exposure while in Southwest Asia contributed to the emphysema. The VA examiner reasoned that any respiratory conditions caused by exposure in Southwest Asia would almost certainly have presented wile in service. Additionally, the VA examiner noted that the Veteran's separation examination was negative for respiratory conditions and that the emphysema did not develop until many years post-service. Further, the VA examiner stated that continued smoking was the single greatest risk for progression of the Veteran's emphysema. The Board finds that the September 2020 VA examination and opinion are the most probative evidence of record. In this regard, the VA examiner thoroughly revied the claims file, discussed the relevant evidence, considered the contentions of the Veteran, and provided supporting rationales, to include specific references to contrasting medical articles, for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the November 2020 VA addendum opinion is inadequate for adjudication purposes. In this regard, the examiner failed to adequately consider the Veteran's lay statements regarding the onset of her respiratory disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Additionally, the VA examiner's rationale is based on an inaccurate factual premise because the medical evidence of record clearly documents the Veteran's respiratory issues, a cough and upper respiratory infection, both during and subsequent to her deployment to Southwest Asia. See Reonal v. Brown, 5 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the VA examiner failed to address the contradictory opinion of the September 2020 VA examiner, and the medical research provided in that opinion. In particular, the VA examiner failed to address why cigarette smoking, instead of CB or nCB, was the greatest risk for progression of the Veteran's emphysema. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the opinion is inadequate, it cannot serve as the basis of a denial for entitlement to service connection. Accordingly, as the preponderance of the evidence is in favor of the claim, the Board finds that entitlement to service connection for a respiratory disability is granted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Right Hip Disability Where evidence requested in connection with an original claim is not furnished within one year after the date of the request, the claim will be considered abandoned. See 38 C.F.R. § 3.158(a) (2020); see also 38 U.S.C. § 5103(a) (2018). Time limits for filing may be extended in some cases upon a showing of "good cause." Where an extension is requested after an expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. 38 C.F.R. § 3.109(b) (2020). Pursuant to the Board's March 2020 remand instructions, VA sent a letter in August 2020, requesting that the Veteran clarify the claim of entitlement to service connection for a hip disability in light of inconsistencies in the record regarding that claim. Additionally, in November 2020, VA sent the Veteran an SSOC stating that the claim for service connection for a right hip injury was denied, and noted the Veteran's failure to respond to the Board's March 2020 request for information. Further, in March 2021, VA sent a letter that notified the Veteran that the case was being returned to the Board. At that time, the Veteran was informed that additional argument or evidence could be submitted either 90 days from the date of the letter, or until the Board issued a decision. Since the issuance of the August 2020 letter, the Veteran has failed to respond to the request for information or request an extension of the time limit for a response. The Board acknowledges that the Veteran's December 2019 private disability benefits questionnaire notes right hip pain. However, the examining physician, Dr. A.R., indicated that the Veteran's right hip pain was less severe, and less frequent, than the left hip. Dr. A.R. also noted that the Veteran only had a current diagnosis of left hip osteoarthritis. Additionally, the Board finds that the record contains no indication of right hip pain that presents a functional impairment of earning capacity sufficient to constitute a disability for compensation purposes. In this regard, the medical evidence contains one notation of generalized pain, to include the hips, prior to the December 2019 assertion of right hip pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, the Board finds that further attempts at development (such as obtaining a medical opinion based upon a complete record) would be futile as the record has not shown evidence of a current right hip disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Ultimately, it is well established that VA's duty to assist is not a one-way street and that a claimant may not passively wait for assistance when cooperation is needed for evidentiary development that is critical to the claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board finds that the Veteran has abandoned the claim of entitlement to service connection for a right hip disability. Accordingly, the claim seeking service connection for a right hip disability is abandoned, there is no allegation of error in fact or law for appellate consideration in this matter and the appeal must be dismissed. 38 U.S.C. § 7105(d)(5) (2018). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.