Citation Nr: 21008624 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-20 636 DATE: February 17, 2021 REMANDED Entitlement to service connection for a lung disorder, to include chronic pneumonia, is remanded. REASONS FOR REMAND The Veteran served on active duty between October 1946 and July 1947. The matter is before the Board of Veterans’ Appeals (Board) on appeal from June 2017 and May 2018 rating decisions by the United States Department of Veterans Affairs (VA) RO in Portland, Oregon. In October 2018, he had a hearing before the undersigned Veterans Law Judge. In October 2020, the United States Court of Appeals for Veterans Claims remanded this case back the Board. Entitlement to service connection for a lung disorder, to include chronic pneumonia, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a lung disorder, to include chronic pneumonia. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, in a May 2019 decision the Board remanded Veteran’s claim for an examination from a medical professional with appropriate expertise and with instructions to inform the examiner that Veteran: is competent to report of the nature and extent of his exposure to cold while stationed in Korea in February 1947, as well as any subsequent exposure during service. In addition, the Veteran is competent to report on his continuous breathing difficulties since service. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should set this out and then provide a fully reasoned explanation for the determination. An addendum VA medical opinion was provided in August 2019 for the respiratory conditions. The VA examiner noted the remand instructions and stated that “it is understood that it is the prerogative of those making the decision to base that decision on the Veteran’s statement.” However, there is nothing in the August 2019 addendum VA medical opinion that indicates that the examiner considered Veteran’s lay statements. To the contrary, the only reference to Veteran’s statements are in the noted remand instructions. A new VA medical opinion that complies with the May 2019 remand instructions is warranted. The matter is REMANDED for the following actions: 1. Acquire updated VA and private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed to the extent possible, obtain an addendum VA medical opinion regarding the Veteran’s lung disorder from a medical professional with appropriate expertise. The reviewer should review the Veteran’s claims file. If the reviewer determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the reviewer must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lung disorder is due to a disease, injury or event experienced during his active duty service, to include cold exposure while stationed in Korea. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Inform the examiner that the Veteran’s is competent to report of the nature and extent of his exposure to cold while stationed in Korea in February 1947, as well as any subsequent exposure during service. In addition, the Veteran is competent to report on his continuous breathing difficulties since service. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should set this out and then provide a fully reasoned explanation for the determination. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.