Citation Nr: 21008732
Decision Date: 02/17/21	Archive Date: 02/17/21

DOCKET NO. 15-41 873
DATE: February 17, 2021

REMANDED

Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty for training in the Pennsylvania Army National Guard from June 1991 until his honorable discharge in August 1991.  The Veteran continued to serve on inactive duty in the Pennsylvania Army National Guard until his honorable discharge in September 1995.

The Veteran subsequently enlisted in the United States Army Reserve and served on active duty in the United States Army Reserve from January 2004 until his honorable discharge in March 2005.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In a December 2019 decision, the Board denied the Veteran’s claim for entitlement to service connection for a respiratory disability, to include COPD.  The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2020 Joint Motion Partial Remand (Motion), the Court remanded the case to the Board for readjudication and to obtain an adequate VA examination.

1. Entitlement to service connection for a respiratory disability, to include COPD is remanded.

The Veteran was afforded a VA examination in September 2015.  The September 2015 VA examiner provided a negative nexus opinion.  As rationale, the examiner explained that the Veteran’s lung problems did not manifest until 2013.  The evidentiary record reflects, however, that while the Veteran’s COPD was diagnosed in 2013, symptoms presented as early as 2008.  Because the September 2015 VA examiner’s rationale rests upon an inaccurate factual premise, remand is warranted for a new VA examination.

For the above reasons, remand is required.

The matters are REMANDED for the following action:

1. Obtain any VA treatment records from the Altoona VA medical center for the period after November 2, 2015 that are not already of record. 

2. Ask the Veteran to supply a release to obtain private treatment records from Dr. M, if not already of record.  

3. Schedule the Veteran for a VA examination for his respiratory disability, to include COPD.  The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

Is respiratory disability, to include COPD, at least as likely as not related to his active service, including exposure to burn pits during active service. Why do you say so?

Provide a detailed rationale to support the opinion(s) and reference any supporting documentation.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Deemer, 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.