Citation Nr: 21015971 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-41 777 DATE: March 18, 2021 REMANDED Entitlement to service connection for a lung disability is remanded. Entitlement to an increased rating for residuals of a right ankle fracture, currently evaluated as 10% disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1966 to August 1969. This appeal has a long procedural history and has been before the Board previously. Most recently, in a May 2018 decision, the Board denied the claims on appeal. The Veteran appealed those denials to the U.S. Court of Appeals for Veterans Claims (the Court or CAVC). The Secretary / Appellee conceded that the June 2016 and October 2017 VA examinations for the right ankle failed to opine as to the functional impairment caused by flare-ups. As such, a remand is required to seek an adequate medical opinion on the Veteran’s right ankle claim. The Court also held that the 2018 Board decision provided inadequate reasons and bases for relying on the 2017 VA medical examiner’s opinion, which failed to address favorable evidence submitted by the Veteran in regard to the claim for service connection for a lung condition. The Veteran contends that he is entitled to service connection for a lung condition related to a chlorine fire during his active military service. The available evidence shows that he developed chronic bronchitis in 2004 and COPD in 2011. While a medical opinion was obtained regarding whether his respiratory/lung condition was incurred in or caused by his military service, the May 2017 VA examiner did not address the buddy lay statements nor the article noting the Veteran did not have post-service exposure to asphalt fumes. See December 2015 Buddy Lay statements (noting Veteran operated caterpillar with enclosed airconditioned cabin when laying asphalt); see also December 2015 National Asphalt Pavement Association (NAPA) Article (noting that although the International Agency for Research on Cancer (IARC), had issued a “possibly carcinogenic” 2B occupational rating to straight run asphalt cement and its emissions during paving, it was not a note of concern for the Veteran as there was already extensive steps being taken to reduce any exposure to asphalt fumes. Further, two key studies showed no increased cancer risks). The Board thus finds that a remand is necessary to obtain an addendum opinion regarding the lung condition which addresses the statements from the Veteran’s post-service coworkers and the article submitted by the Veteran. In addition, pursuant to the Court remand, a new VA examination is needed to adequately assess the current nature, symptoms, and severity of the Veteran's service-connected right ankle fracture. The examinations and their associated reports were inadequate because, along with the other evidence of record, they provided insufficient information to decide the appeal on a sound basis for the Veteran’s claims. The most recent VA examinations of this condition were in June 2016 and October 2017, more than three years ago, and they both failed to address symptoms of additional functional loss due to flare-ups or repeated use over time. Therefore, the Board finds a new, adequately recorded examination is warranted to resolve this case. Barr v. Nicholson, 21 Vet. App. 303 (2007); Sharp v. Shulkin, 29 Vet.App. 26, 33 (2017). The matters are REMANDED for the following action: 1. Obtain the Veteran’s medical records from KC from October 2015 to the present. 2. Forward the claims file to the May 2017 VA examiner (if available) for an addendum opinion addressing the contentions of the buddy statements and medical article submitted by the Veteran in December 2015. (No new examination is needed unless it is determined necessary by the examiner). Was it as likely as not (more than 50 percent probability) that any diagnosed lung disability, to include chronic bronchitis and COPD, had its clinical onset during service or is due to an event or incident of the Veteran’s period of active service, to specifically include the reported chlorine fire? The examiner must consider the statements from the Veteran’s post-service coworkers and the article regarding occupational exposures that attend road paving submitted by the Veteran in December 2015. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran’s account of his injury in service due to a chlorine fire is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. A clear rationale for would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with the Veteran’s right ankle fracture. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All findings should be reported in detail. 4. The AOJ should then review the record and readjudicate the claims on appeal, to include whether referral to the Director of Compensation for an extraschedular rating is warranted. If any issue is denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.