Citation Nr: 21006577 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-53 699 DATE: February 4, 2021 REMANDED Entitlement to service connection for sarcoidosis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to October 1977. By way of background, this matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a September 2019 decision, the Board denied the Veteran’s claim of service connection for sarcoidosis. The claim for service connection for sarcoidosis was appealed by the Veteran to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). The Court issued a Joint Motion for Remand (JMR) in July 2020 vacating the Board’s decision on the issue and remanded the matter for readjudication. In the JMR, the CAVC stated that the Board failed to provide an adequate statement of reasons and bases for its denial of service connection for sarcoidosis. Entitlement to service connection for sarcoidosis is remanded. The Veteran asserts that he is entitled to service connection for sarcoidosis. The Veteran through his representative argues that he is entitled to compliance with the remand orders set forth by the CAVC in the July 2020 JMR. See Appellate Brief Received by the Board in January 2021. The July 2020 JMR specifically states that in its September 2019 decision, the Board failed to explain whether the duty to assist was fulfilled and failed to adequately address the basis for its reliance on the May 2016 VA examination. It was noted that the Board failed to explain the basis for its reliance on the negative medical finding from the May 2016 examination and failed to address the adequacy of the opinion. The JMR noted that the May 2016 VA examination opinion mainly addressed a lack of objective evidence of sarcoidosis in the Veteran’s service treatment records as rationale. Moreover, the JMR stated that given the several in-service notations of respiratory issues, the Board must ensure that the May 2016 VA examination adequately contemplates the Veteran’s medical history. See July 2020 CAVC decision. The Veteran’s service treatment records indicate that the Veteran experienced respiratory issues during active duty service. A treatment record dated November 1974 states that the Veteran’s final diagnosis was acute respiratory disease. A January 1976 service treatment record states that the Veteran had a cough and chest congestion. Additionally, a March 1977 service treatment record states that the Veteran had mucus and chest related issues. A July 1977 Emergency Room service treatment record states that the Veteran’s chest was hurting and that his temperature was elevated. The Veteran was afforded an examination to assess his sarcoidosis disability in May 2016. The examiner noted that the Veteran was diagnosed with sarcoidosis in the 1980s. The examiner also noted that the Veteran is claiming sarcoidosis as secondary to an acute respiratory illness diagnosed during military service. In the remarks section the examiner stated that after a review of the Veteran’s available medical records, he was diagnosed with an acute upper respiratory infection in November 1974 that was treated with antibiotic therapy and resolved as the remainder of his STRs are silent for any residuals. The examiner also remarked that there is no objective evidence located in the Veteran’s STR’s that would indicate that his sarcoidosis was present during military service. The examiner noted that post military records document a report that his sarcoidosis was diagnosed sometime in the 1980s. The Board notes that the examiner did not provide an explicit medical etiological opinion as to whether it was at least as likely as not (a 50 percent probability or greater) that the Veteran’s sarcoidosis was directly related to service, to include the acute upper respiratory infection that the Veteran experienced in service, although the previous Board decision inferred that the Veteran’s acute respiratory condition resolved without residuals. The Board also notes that an August 2016 evaluation noted that the Veteran’s respiratory system showed diminished function in the left lung more so than the right, with no crackles or wheezes. The VA pulmonologist also found that the Veteran’s pulmonary sarcoidosis, which developed in the early 1980s, is “suspected” to be inactive. The Board finds that further medical development is necessary in order to comply with the July 2020 CAVC JMR. The May 2016 VA examination is not adequate for the Board to make an assessment on the issue of service connection. The examiner failed to provide an explicit medical opinion with regard to whether it was at least as likely as not (a 50 percent probability or greater) that the Veteran’s sarcoidosis was directly related to service, to include the acute upper respiratory infection that the Veteran experienced in service. Furthermore, the examiner erroneously relied on the absence of evidence of symptoms of sarcoidosis after November 1974 in reaching his conclusions that the respiratory condition resolved. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Here, the May 2016 examiner’s conclusions were based on an absence of documentation of sarcoidosis in the service treatment records and the examiner failed to accurately consider all of the Veteran’s respiratory related symptoms during active service. Moreover, the May 2016 examiner stated that the Veteran’s STRs were silent for residuals of a respiratory condition, without taking into consideration the several complaints related to the Veteran’s chest and respiratory related issues (documented in his STRs) subsequent to his diagnosis of acute upper respiratory infection in November 1974. Thus, the examiner’s May 2016 opinion is based on inaccurate factual information that was used to support a finding that the Veteran did not have sarcoidosis while in service. An adequate medical opinion must be based upon a consideration of the Veteran’s prior medical history and must describe the Veteran’s condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A medical opinion based on an inaccurate factual premise must be dismissed as non-probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Additionally, the August 2016 evaluation is not adequate and is speculative at best, as it fails to set forth a medical opinion with a reasonable degree of medical certainty and it does not appear that the examiner considered the Veteran’s complete medical history. Thus, this matter should be remanded to obtain an expert medical opinion which reflects consideration of all available evidence, including service treatment records and lay statements as to the onset of the Veteran’s sarcoidosis disability. Based on the foregoing, the Board must now remand this issue to the Agency of Original Jurisdiction (AOJ) to ensure compliance with the July 2020 CAVC JMR decision. The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records. 2. Provide an addendum opinion with regard to the sarcoidosis disability claim. The electronic claims file must be made accessible to the examiner for review in connection with the examination. The examiner should provide an opinion as to whether it is: (a.) At least as likely as not (a 50 percent probability or greater) that the Veteran’s sarcoidosis disability had its onset in service. (b.) At least as likely as not (a 50 percent probability or greater) that the Veteran’s sarcoidosis disability is related to service, to include the November 1974 documented in-service notation of an acute respiratory disease. The examiner must consider and specifically address the following notations in the Veteran’s service treatment records: A November 1974 treatment record that states that the Veteran’s final diagnosis was acute respiratory disease; a January 1976 service treatment record states that the Veteran had a cough and chest congestion; additionally, a March 1977 service treatment record states that the Veteran had mucus and chest related issues; and a July 1977 Emergency Room service treatment record that states that the Veteran’s chest was hurting and that his temperature was elevated. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a sarcoidosis disability and related symptoms, alone, is insufficient rationale for a medical nexus opinion. In providing these opinions, the examiner is reminded that the Veteran is competent to report continuous symptoms since service, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports regarding current or past symptoms, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall 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(s). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.