Citation Nr: 21023258 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-44 036 DATE: April 20, 2021 REMANDED Entitlement to service connection for respiratory condition, to include COPD and a condition manifested by frequent colds with coughing and dizziness, is remanded. Entitlement to service connection for hiatal hernia associated with mild esophageal stricture is remanded. Entitlement to total disability individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) for aid and assistance is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1984 to March 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 (TDIU) and August 2012 (hiatal hernia, COPD, SMC) rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2018 and January 2020, the Board remanded these matters. These matters are now back before the Board. In a March 2015 Board hearing, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. In January 2020, the Board remanded the claims on appeal for further development. For the reasons explained below, the Board finds that there has not been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding the Veteran’s claim for service connection for a respiratory condition, the examiner was asked to consider printed evidence the Veteran submitted in May 2013 that concluded chronic exposure to jet fuel was reported to induce chronic irritation of the respiratory tract, and may be associated with COPD. See Glenn D. Ritchie, Biological and Health Effects of Exposure to Kerosene Based Jet Fuels and Performance Additives, J. Toxicology & Envtl Health Part B 357, 386-387 (2003). In a March 2020 addendum opinion, the examiner opined that while “petroleum fuses is noted as a risk factor” that given the “extensive exposure to cigarette smoke, both personal and environmental, it can not be stated that exposure to fumes is the cause of COPD.” The Veteran’s tobacco use is acknowledged, but the examiner did not discuss the May 2013 materials submitted by the Veteran regarding fuel fume exposure being related to COPD or provide a rationale with any citation to medical evidence. Rather, the examiner provided a conclusory statement that the Veteran’s tobacco exposure alone caused his COPD. Accordingly, this opinion is insufficient. An addendum opinion discussing the Veteran’s in-service exposure to fumes, addressing his lay contentions, and providing medical evidentiary support for any opinion is required. Regarding the Veteran’s claim for service connection for a hiatal hernia, the January 2020 Board remand directed the examiner to specifically discuss March 1984 service treatment records recording complaints of abdominal discomfort with spit up and cough. In March 2020, an examiner provided an addendum opinion to discuss the March 1984 treatment note. The examiner observed “[t]here is no evidence of cough.” The examiner went on to conclude there was no evidence in the medical record entry to suggests a hiatal hernia. However, the examiner’s opinion regarding the absence of a cough is inconsistent with the March 1984 service treatment records, which clearly states that the Veteran complained of coughing. The examiner offers no reasoning to support the conclusion that there was no evidence of a cough. Accordingly, because the examiner’s opinion is inconsistent with the medical evidence contained in the service treatment records, an additional addendum opinion is necessary for clarification Further, in response to the Board’s remand directive as to whether a hiatal hernia clearly and unmistakably existed prior to service, the March 2020 examiner opined that the hernia identified by scar on examination in February 1984 was an inguinal hernia repair. The examiner did not discuss the medical evidence that led to this conclusion. The examiner’s entire rationale to discount any potential etiological relationship between the hernia pre-existing service and the currently diagnosed hernia is “[i]nguinal hernia is not the same thing as a hiatal hernia.” A discussion of how the examiner determined the preexisting hernia was an inguinal hernia, and why there is no potential etiological relationship between the preexisting hernia and the currently diagnosed hernia, is necessary for the Board to assess the probative weight to assign to the opinion. A conclusory statement that hernias are different and therefore unrelated without explanation will not suffice. Accordingly, the Board finds that another remand is necessary to afford the Veteran addendum opinions which adequately responds to the Boards prior January 2020 remand regarding the etiology of his respiratory condition and hernia. The Veteran’s TDIU and SMC claims are inextricably intertwined with these remanded claims. Accordingly, adjudication of the TDIU and SMC claims should be deferred pending resolution of the respiratory condition and hernia claims. The matters are REMANDED for the following action: 1. After performing any further development deemed appropriate, obtain an addendum opinion from an appropriate examiner. The evidentiary record, including a copy of this remand, must be available to and reviewed by the reviewer. It is up to the discretion of the examiner whether a new examination is necessary to provide an adequate opinion. The examiner must confirm in an addendum report that this record review took place. The VA examiner is asked to respond to the following inquiries: (a.) With consideration of a review of the May 2013 printouts submitted by Veteran, and the remainder of the claims file including March 1984 service treatment records recording complaints of coughing, the examiner is asked to express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory condition, to include COPD, was incurred in, caused by, or aggravated (permanently worsened beyond the normal progression of that disease) by his military service. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (b.) With consideration of March 1984 service treatment records recording complaints of abdominal discomfort with spit up and cough, and the remainder of the claims file, the examiner is asked to express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hiatal hernia was incurred in, or caused by his military service. (c.) With consideration of service treatment records that show a two years old hernia prior to service, and the remainder of the claims file, the examiner is asked to express an opinion as to whether a hiatal hernia clearly and unmistakably existed prior to service. If so, was the hiatal hernia aggravated beyond its natural progression by his military service. In the event that the examiner concludes that the Veteran experienced different types of hernias (e.g. inguinal hernia and hiatal hernia), a discussion of the medical evidence that led to this conclusion, and a discussion of any potential etiological relationship between different types of hernias is requested. All opinions must be supported by a clear rationale, discussion of the facts, and medical principles involved. The examiner should provide a comprehensive medical rationale for any opinion offered and a conclusory statement will not suffice. The Veteran’s lay statements, including his testimony before the Board in March 2015, should be addressed and discussed. 2. If service connection is granted for either or both the respiratory condition and hernia claims, perform any further development deemed appropriate to adjudicate the Veteran’s TDIU and SMC claims. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, 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.