Citation Nr: 21020847 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-24 482A DATE: April 8, 2021 REMANDED Whether the severance of service connection for pulmonary nodules of the right lung and left lung base scarring was proper is remanded. Entitlement to service connection for a liver disease is remanded. Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to December 1991. These matters came before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and August 2013 rating decisions. The Veteran testified before the undersigned in a June 2017 hearing. A transcript of the hearing is of record. In July 2018, the Board remanded the claims for further development of the record. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion as to the nature and etiology of the claimed disabilities. An addendum opinion was provided in April 2019. In February 2020, the Board denied the claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim. In November 2020, the Court granted the parties’ Joint Motion for Remand and remanded the appeal to the Board. 1. Whether the severance of service connection for pulmonary nodules of the right lung and left lung base scarring was proper is remanded. In the October 2020 Joint Motion, the parties agreed that vacatur of the February 2020 Board decision regarding the severance of service connection for pulmonary nodules of the right lung and left lung base scarring was required, and that remand was required because the Board did not ensure that VA satisfied the duty to assist in obtaining an adequate VA examination. The parties agreed that April 2019 VA medical opinion relied on by the Board to deny the claim was inadequate because the examiner did not address the Veteran’s reports of symptoms during and since service. Miller v. Wilkie, 32 Vet. App. 249 (2020). The parties noted that the Veteran complained that “when I was in Iraq…I was exposed on a daily basis to black smoke from burning waste. It made it difficult to breathe and caused congestion and burning in my chest. All of my breathing problems started at this time.” During a June 2017 Board hearing the Veteran testified that he experienced respiratory problems when overseas and stated, “well sometimes I have a hard time breathing and I still do.” The Veteran stated that he had problems during service with expanding the lungs to get enough air. The parties agreed that because the April 2019 VA medical opinion was inadequate, further examination or opinion was required to address the Veteran’s statements regarding symptoms during and since service. 2. Entitlement to service connection for a liver disease is remanded. 3. Entitlement to service connection for diabetes mellitus is remanded. In the October 2020 Joint Motion, the parties agreed that vacatur of the February 2020 decision regarding service connection for a liver disease and diabetes mellitus and remand were required because the Board did not address the Veteran’s contentions regarding the competency of the April 2019 VA examiner. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Veteran’s asserted that the April 2019 VA examination was inadequate because the examiner did not have the qualifications to provide the opinion requested in the March 2018 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Further opinion is needed to address the etiology of liver disease and diabetes mellitus. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, specifically, records dated from October 1990 to January 2008, and associate the records with the claims file. 2. Schedule the Veteran for a VA examination by a medical doctor with expertise in the health effects of environmental toxins, to determine the diagnosis, nature, and likely etiology of a claimed lung disability. The examiner must address the Veteran’s assertions that he experienced symptoms of a lung disability during and since service. The Veteran reported that when he was deployed to Iraq, on a daily basis, he was exposed to black smoke from burning waste which made it difficult to breathe and caused congestion and burning in his chest. The Veteran testified that he experienced respiratory problems when overseas and that he had problems during service with expanding the lungs to get enough air. The Veteran asserts that his breathing problems started during that time. The examiner must review the entire record and should note that review in the report. A thorough explanation must be provided for the opinions. After reviewing the entire record, the examiner should provide the following opinions: (a) Confirm that the examiner is a medical doctor with expertise in the health effects of environmental toxins. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current lung disability, to include pulmonary nodules of the right lung and left lung base scarring, that is related to service or any event, injury, or disease during service, to specifically include conceded toxin exposure during service. If another etiology for the lung disability is more likely, the examiner should state that and explain why. (c) The examiner should explicitly address the Veteran’s assertions that he experienced symptoms of a lung disability during and since service. 3. Schedule the Veteran for a VA examination by a medical doctor with expertise in the health effects of environmental toxins, to determine the diagnosis, nature, and likely etiology of a claimed liver disease and diabetes mellitus. The examiner must discuss the Veteran’s documented medical history and assertions. A thorough explanation must be provided for the opinions. The examiner must review the entire record in and should note that review in the report. After reviewing the entire record, the qualified clinician with expertise in the health effect of environmental toxins should provide the following opinions: (a) Confirm that the examiner is a medical doctor with expertise in the health effects of environmental toxins. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has diabetes mellitus that is related to service or any event, injury, or disease during service, to specifically include conceded toxin exposure during service. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has diabetes mellitus manifested during service or within one year following separation from service. (d) Diagnose all liver disabilities found or diagnosed during the pendency of the appeal. (e) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a liver disability that is related to service or any event, injury, or disease during service, to specifically include conceded toxin exposure during service. (f) The examiner should explicitly address the Veteran’s assertions that he experienced symptoms during and since service. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.