Citation Nr: 21010164 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-10 845 DATE: February 24, 2021 REMANDED Entitlement to service connection for a pulmonary disorder other than asbestosis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1969. This appeal is before the Board of Veterans’ Appeals (Board) from a March 2007 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The procedural history of this case is as follows: In March 2007, the RO issued a rating decision which denied the Veteran’s claim. Further development followed, including a January 2013 Board remand. In December 2017, the Board denied the Veteran’s claim. However, the Veteran appealed the December 2017 Board decision to the U.S. Court of Appeals for Veteran’s Claims (CAVC) and in August 2018, CAVC issued a Joint Motion for Remand (JMR) vacating the December 2017 Board decision. Subsequently, in August 2019, the Veteran was afforded a Board hearing and in November 2019, the Board denied the Veteran’s claim. However, once again, the Veteran appealed his claim to CAVC and in September 2020, CAVC issued another JMR after finding the Board relied on an inadequate May 2017 VA addendum opinion in rendering the November 2019 decision. Specifically, the JMR determined the May 2017 VA addendum opinion did not address the Veteran’s lay statements regarding “shortness of breath over the past 30 years.” Moreover, the September 2020 JMR ordered the Board to acquire a medical opinion that addresses the Veteran’s lay statements. Although the Board will remand the Veteran’s claim in accordance with the September 2020 JMR, considering the complicated medical history associated with the claim, the Board will recite the pertinent evidence of record below. The Veteran asserts he has a respiratory disorder, other than asbestosis, that is related to in-service asbestos exposure. Turning to the evidence of record, the service treatment records are devoid of any references to a pulmonary condition or reports of breathing difficulties and his September 1969 separation examination reflects that his lungs were normal. In June 2006, an X-ray conducted at a private facility revealed chronic bronchitis. A VA treatment record from August 2008 states that he had an episode of bronchitis requiring a visit to the emergency room six weeks prior and he subsequently quit smoking. A September 2015 VA chest X-ray revealed he was diagnosed with emphysematous disease. A VA examination report from February 2016 reflects a review of the claims file and an in-person evaluation. The examiner noted the Veteran’s diagnosis of COPD in 2003, as well as his report that he stopped smoking around 10 years prior to the evaluation. The examination report also indicates that the Veteran controlled his condition with both inhalational bronchodilators and anti-inflammatory medication, which he uses daily. Numerous pulmonary function tests were found to show an obstructive physiology common for COPD, not a restrictive one that would be associated with pulmonary asbestosis. As such, the examiner concluded that “all of [the Veteran's] respiratory symptoms are secondary to his COPD.” During an appointment with his VA treating provider in May 2016, the Veteran complained of shortness of breath for the last 30 years. The attending physician noted a history of asbestos exposure and tobacco use (1 pack per day) but stated that he quit smoking in 2004. In a December 2017 decision, the Board conceded the Veteran was exposed to asbestos during his military service. Dr. M.C., a private physician, submitted a disability benefits questionnaire in September 2019. Dr. M.C. noted the Veteran’s diagnoses of emphysema, COPD, and pleural plaque. These were found to result in shortness of breath, which has gradually progressed over the last 30 years. The Veteran’s respiratory conditions were also found to require treatment with inhaled medications as well as oral or parenteral corticosteroids. However, there was no evidence of any episodes of respiratory failure in the previous 12 months. Based on this evidence, Dr. M.C. found that the Veteran’s lung conditions would result in shortness of breath with any physical activity, including ambulation. Nonetheless, he did not issue a statement concerning the etiology of these impairments. In sum, in accordance with the September 2020 JMR, the Board must obtain an addendum medical opinion to address the Veteran’s lay statements of continued shortness of breath since active duty service in addressing the etiology of his alleged pulmonary disorder. The matter is remanded for the following actions: 1. Acquire an addendum opinion from an appropriate examiner. The opinion shall answer the following: Whether it is at least as likely as not (a 50 percent probability or greater) the Veteran’s pulmonary disorder, other than asbestosis, is related to active duty service? In answering this question, the examiner shall consider the Veteran’s May 2016 lay statements regarding symptoms of “shortness of breath over the past 30 years” in conjunction all the relevant evidence of record. The opinion is to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, a complete explanation stating why this is so shall be provided. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the Veteran’s claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.