Citation Nr: 21007115 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 13-09 614 DATE: February 8, 2021 REMANDED Entitlement to service connection for a respiratory disability, claimed as asbestosis due to in-service asbestos exposure, is remanded. REASONS FOR REMAND In a March 2019 decision, the Board of Veterans’ Appeals (Board) denied service connection for a respiratory disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 order, the Court granted a Joint Motion for Remand (JMR), vacating the March 2019 decision and remanded the case to the Board for compliance with the Court order. The claim was most recently remanded by the Board in August 2020 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). The claim must be remanded because the November 2020 VA opinion is inadequate. The examiner determined that there was no evidence to support a finding of any respiratory diseases, including chronic obstructive pulmonary disease (COPD) and asbestosis, despite medical records indicating as such. The examiner noted that a computerized tomography (CT) scan would be better at indicating whether the Veteran suffers from any respiratory diseases. However, the Veteran had already been afforded a CT scan by the VA. See December 2010 VA examination. The November 2020 VA opinion is further inadequate because although the examiner provided a negative opinion as to whether the Veteran’s active duty service caused any COPD, the examiner did not consider and address the Veteran’s reports of in-service exposure to asbestos. The examiner also did not cite any medical studies to support their rationale that “asbestos does not cause COPD.” Further, the examiner did not provide an opinion as to whether the Veteran’s active duty service, to include reports of in-service exposure to asbestos, caused any asbestosis. The Veteran’s representative submitted a January 2021 Appellate Brief noting medical studies regarding asbestos exposure: Mesothelioma Center, Chronic Obstructive Pulmonary Disease, https://www.asbestos.com/asbestos/copd (May 2019). The opinion on remand should address that submission. The representative also challenged the qualifications of the examiner who provided the November 2020 opinion. A claimant can challenge the competence of a VA opinion provided, but must set forth the specific reasons why that expert is not qualified to give an opinion. See Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010). See also Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Here, the representative included a citation to the examiner’s qualifications and noted there was no evidence of specialized training in toxicology or environmental hazards; the only sub-specialty listed was in urology. The Board has concluded that the substance of the opinion itself is inadequate and is remanding for a new opinion. The Board will direct that the opinion provided on remand be made by an examiner with sufficient expertise to address the specific facts of this case. As the November 2020 opinion is provided no probative value, there is no need to develop the claim for more specific information as to this examiner’s qualifications or curriculum vitae. Id. at 1308. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician (preferably one with experience in asbestos-related claims) to determine the etiology of any diagnosed respiratory disability. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following. After reviewing the record, the examiner is asked to answer the following questions: (a) The examiner should review the Veteran’s in-service and post-service occupational history form the Veteran. If that information is not readily available from the record, the examiner should ask the AOJ for that information before giving the opinion. (b) Identify all respiratory disorders diagnosed since October 2009, to include whether asbestosis and COPD had been diagnosed at any point during the period on appeal. The examiner should consider and discuss as necessary (i) the May 2009 chest x-ray interpreted an impression of interstitial lung disease consistent with asbestosis and pleural disease(ii) the August 2010 VA chest x-ray interpreted as showing a linear scar on the right lung; (iii) the November 2010 addendum opinion that the linear scar was unrelated to asbestosis exposure; (iv) the May 2011 VA examination reflecting a diagnosis of COPD; (v) private treatment records indicating the Veteran has been diagnosed with asbestosis, interstitial lung disease consistent with asbestosis, and asbestos related pleural disease; (vi) the April 2018 VA treatment note reflecting that the Veteran suffered from mild pulmonary hypertension; and (v) Mesothelioma Center, Chronic Obstructive Pulmonary Disease, https://www.asbestos.com/asbestos/copd (May 2019). (c) For any respiratory disorder diagnosed during the period of the claim, to include asbestosis and COPD, is it at least as likely as not related to the Veteran’s active duty service, to include as due to include the Veteran’s reports of in-service exposure to asbestos? (d) If (c) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed respiratory disorder diagnosed during the period of the claim, to include asbestosis and COPD has been aggravated by any of the Veteran’s service? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.