Citation Nr: 21024619
Decision Date: 04/23/21	Archive Date: 04/23/21

DOCKET NO. 13-11 808
DATE: April 23, 2021

REMANDED

The appeal for entitlement to service connection for a respiratory/pulmonary disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1961 to August 1965.  

This matter comes before the Board of Veterans’ Appeals (Board) from a November 2010 decision by the Agency of Original Jurisdiction.  The Board denied this appeal in November 2019.  The Veteran perfected a timely appeal to the United States Court of Appeals for Veterans Claims (Court).  In December 2020, the Court approved a Joint Motion for Remand filed by both parties to the case, vacated the Board’s November 2019 decision, and remanded for further proceedings consistent with the terms of the Joint Motion. 

The parties to the Joint Motion agreed that the Board improperly limited its consideration of the Veteran’s respiratory disability to only chronic obstructive pulmonary disease (COPD) when the Veteran’s medical records also show diagnoses of borderline restrictive lung disease and also indicate pleural effusions and scarring.  Therefore, upon remand, the AOJ must perform an initial review which includes consideration of all respiratory diagnoses and symptoms.

Second, the parties challenged the adequacy of the May 2019 VA examination for purposes of compensation.  Although the examiner noted the Veteran’s history of herbicide exposure, the examiner failed to explain whether and if so, how, herbicide exposure may be a factor in the Veteran’s respiratory condition, and also failed to address the prior diagnosis of borderline restrictive lung disease.  We observe that the Veteran has not asserted his respiratory disabilities are due to herbicide exposure; however the VA has already determined that exposure to herbicides may be assumed during his Vietnam service, and has granted service connection for two other disabilities based upon the presumption of herbicide exposure.  

The Veteran’s stated contention is that his respiratory disabilities are caused or aggravated by his exposure to asbestos.  Asbestos exposure is conceded by VA.  Currently, the record does not contain an adequate and well-explained opinion as to whether the Veteran’s respiratory disabilities, including COPD, borderline restrictive lung disease, pleural effusions, and scarring, are due wholly or in part to asbestos exposure.

As the case must be remanded, the Veteran’s VA treatment records should be updated for the file.  

IF the Veteran has received private medical care for his pulmonary complaints, subsequent to the June 2008 medical evaluation, he is encouraged to coordinate with the AOJ to obtain these records for review by adjudicators.

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the Present.

2. After obtaining the records requested above, arrange for an addendum opinion from an appropriate clinician regarding whether the Veteran’s respiratory disabilities, including COPD, borderline restrictive lung disease, pleural effusions, and scarring, are more, less, or equally likely related to or aggravated by exposure to herbicides and/or asbestos during service.  The pathogenesis involved in herbicide-related lung disease and asbestos-related lung disease should be discussed.  A complete rationale for all conclusions reached should be fully explained.  

IF further tests or studies, or a clinical examination is deemed helpful by the pulmonologist reviewer, then such tests, studies, and/or examination should be scheduled.  

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Heather J. Harter, 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.