Citation Nr: 21006167 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-30 278 DATE: February 3, 2021 REMANDED Entitlement to service connection for a respiratory disorder, claimed as due to beryllium exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1986 to May 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that jurisdiction now rests in Roanoke, Virginia. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013. The Veteran’s wife, J.T., was present as a witness. A transcript of the hearing is of record. The Board remanded this matter in May 2014. In an April 2016 decision, the Board denied this claim. The Veteran appealed the April 2016 Board decision to the Court of Appeals for Veterans Claims (Court). The Court issued a Joint Motion for Remand (JMR) in March 2017, vacating the Board’s decision. The Board then remanded this issue in September 2017 and June 2020. However, the Board finds that the RO did not substantially comply with the directives set forth in the June 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a respiratory disorder, claimed as due to beryllium exposure is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the June 2020 remand, VA opinion was obtained for the Veteran’s respiratory disorder claim. The Board directed that the VA examiner address the additional respiratory diagnoses, to include asthma and berylliosis, and the continued finding of beryllium exposure in service as well as the finding of abnormal pulmonary function tests. The Board also directed the VA examiner to consider the Veteran’s lay statements that beryllium dust got into the respirators. In an August 2020 VA opinion, the examiner opined that the Veteran’s respiratory disorder was less likely than not due to service. The examiner stated that the Veteran’s diagnosis was asthma/COPD. The Veteran had claimed non-smoking status throughout multiple years of records. Beryllium exposure was claimed by the Veteran as the cause of his COPD. All CT scans and chest x-rays were negative for objective signs of beryllium exposure. Beryllium caused scarring of the lungs and was considered a granulomatous disease and might lead to pulmonary fibrosis. It did not cause COPD. Smoking and asthma were the leading cause of COPD. As noted, the Veteran denied smoking. Pulmonary consults VA examinations and opinions and PFTs did not support beryllium related lung disease. The examiner said that the PFTs in 2014 were essentially normal, including those normally associated with COPD. A minor, clinically insignificant, decreased in DLCO was noted. The etiology of this was not clear, per the pulmonologist. However, in the absence of imaging findings, it was not attributed to beryllium exposure. The pulmonologist eliminated beryllium exposure as the cause of the Veteran’s COPD. Therefore, the examiner opined that it was less likely than not that the Veteran’s COPD was due to possible beryllium exposure in service or had its nexus in service. The examiner said there was no evidence of pulmonary disease while in service or proximate to service. The Veteran’s first symptoms arose in 2000, 10 years post-service. The Veteran was diagnosed with asthma in 2007. Review of the literature showed decades might pass prior to manifestations of chronic beryllium disease (CBD). In the event of change in status, to include worsening DLCO and imaging changes consistent with CBD, reevaluation would be warranted. According to the available records, the Veteran never suffered the acute sanitization reaction associated with such exposure. This did not eliminate the possibility of development of CBD in the future. In the subsequent November 2020 VA opinion, the examiner opined that the Veteran’s respiratory condition was less likely than not due to service. The examiner said that the claims folder noted a history of beryllium exposure due to service, a diagnosis of COPD with never smoker. The Veteran’s imaging studies from 2013 and 2014 were unremarkable and no evidence of interstitial lung disease (ILD). The examiner noted the PFTs from 2013 and 2014 noted mild gas exchange abnormality. The Veteran’s pulmonary critical care consult in 2014 did not confirm beryllium disease and unknown etiology for COPD. The examiner quoted, “chronic beryllium disease (CBD), also called berylliosis, is a granulomatous disease caused by exposure to beryllium.” The imaging studies were silent for granulomas or ILD. The claims folder was silent for active treatment or diagnosis of beryllium disease. The Veteran’s COPD was diagnosed in 2007, which was may years post service, and pulmonary specialist noted unclear etiology of COPD. The examiner said there was no evidence of chronic lung disease diagnosed in service treatment records or respiratory complaints. The Veteran’s respiratory symptoms began in 2007. Thus, a nexus was not established to service or beryllium exposure. Initially, the Board notes that despite the broad assertion that the Veteran’s respiratory disorder was not related to service, both the August 2020 and November 2020 VA opinions only included a rationale for lack of nexus for COPD. The examiners did not specifically discuss etiology of the Veteran’s diagnosed asthma and berylliosis found in the records, and the Board cannot make the assumption that the examiners intended to include both asthma and berylliosis. Thus, this is a Stegall violation. Additionally, the Board also finds both VA opinions to be inadequate for another reason. Regarding both the August 2020 and November 2020 VA opinions, the opinions are conflicting. In the August 2020 VA opinion, the examiner said that the first symptoms of COPD were in 2000 and asthma was diagnosed in 2007. In the November 2020 VA opinion, the examiner said that the Veteran’s COPD was diagnosed in 2007. Therefore, on remand, an additional VA opinion should be obtained addressing the etiology of the asthma and berylliosis diagnoses in the record. Finally, the examiner should clarify the actual years of diagnosis and/or onset of symptoms for the Veteran’s asthma and COPD. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. The Veteran should assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an appropriate examiner to determine the etiology of the Veteran’s respiratory disorder. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent records, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s asthma and/or berylliosis is related to service, to include in-service beryllium exposure. A clear rationale must be provided. The examiner must consider and discuss the Veteran’s lay statements. The examiner must also clarify the date of onset of symptoms and/or diagnosis of the Veteran’s COPD and asthma. The examiner must also note that a lack of contemporaneous records is not an absolute bar to service connection. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.