Citation Nr: 21074311 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-32 002 DATE: December 14, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to toxic environmental exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967. The Veteran's appeal was pending at the Court of Appeals for Veterans' Claims (Court) when he died in December 2019. The appellant is the Veteran's surviving spouse, who was recognized as the substitute appellant for the Veteran's pending claim. See August 2020 Department of Veterans Affairs (VA) letter. The Board denied the claim in March 2019, which decision was vacated by the Court in a July 2020 Joint Motion for Remand (JMR). The Board then remanded the matter in December 2020 and August 2021, and it now returns to the Board for further appellate review. Regrettably, the Board finds that further evidentiary development is necessary, and remand is required. The July 2020 JMR found that the Board failed to ensure compliance with the duty to assist. Specifically, the record did not contain VA treatment records dating from 2014. See July 2020 CAVC JMR. The Veteran referred to respiratory treatment and testing that he underwent at VA medical facilities, particularly at the Bismarck VA Clinic, in 2014. The JMR noted that VA treatment records post-dating this time refer to a respiratory prescription approved in 2014, which indicates that there was treatment activity at VA facilities in 2014. Id. As a result, the December 2020 Board remand directed the AOJ to attempt to obtain the Veteran's outstanding treatment records, including those from the Bismarck VA Clinic regarding respiratory treatment received in 2014. See December 2020 Board Remand. While updated VA treatment records were obtained from the VA Clinic in Bismarck, ND, the earlier 2014 records specifically cited by in the July 2020 JMR were not associated with the claims file. The record still lacks any indication that such records have been requested. The Court has held that VA medical records are in constructive possession of the agency and must be obtained if pertinent. 38 C.F.R. § 3.159(c)(2); see Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, the Board finds that a remand is necessary to obtain these VA treatment records and to comply with the prior remand directives regarding same. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Moreover, the Board notes that despite various VA opinions of record addressing the etiology of the Veteran's COPD, no VA examiner has addressed the private opinions submitted on behalf of the Veteran regarding the possible link between his COPD and his exposure to toxins while in service. The record contains March 26, 2013 and May 30, 2013 letters from Dr. B.S., an April 11, 2013 letter from nurse practitioner C.B.H., and a May 31, 2013 letter from Dr. T.W. All of said letters contain opinions that potentially relate the Veteran's COPD to his time in serviceincluding his exposure to trichloroethylene (TCE) while stationed at Marine Corps Air Station (MCAS) El Toro. While a medical examiner need not discuss all of the potentially favorable evidence of record to render an adequate opinion, the examiner's opinion must still be based on consideration of the relevant medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("[T]here is no reasons-or-bases requirement imposed on examiners."). However, given the fact that these practitioners personally treated the Veteran and the number of said opinions submitted, the Board finds that these medical opinions are relevant medical history that should also be addressed by a VA clinician on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his COPD that are not already of record. The AOJ must specifically attempt to obtain treatment records from the VA Clinic in Bismarck, ND from the year 2014. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Appellant and her representative should be notified, and the record clearly documented. 2. After completing directive #1 above, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's COPD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinions must include a notation that this record review took place. The reviewing clinician should answer the following: Is it at least as likely as not that the Veteran's COPD was incurred in, or is otherwise related to, his time on active service, including but not limited to his exposure to TCE while stationed at MCAS El Toro? The reviewing clinician should specifically address the private medical opinions submitted by the Veteran's treating medical practitioners. Specifically, the March 26, 2013 and May 30, 2013 letters from Dr. B.S., an April 11, 2013 letter from nurse practitioner C.B.H., and a May 31, 2013 letter from Dr. T.W. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page) 3. After completing the directives above to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Appellant and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.