Citation Nr: 21025961 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-20 782 DATE: April 29, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for aortic aneurysm is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1971 to April 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2019 when it was remanded for further development. In March 2019, the Veteran testified before a Veterans Law Judge and a transcript of that hearing is associated with the claims file. However, the Veterans Law Judge who conducted the hearing is no longer employed by the Board and is not available to participate in this decision. In a March 2021 letter, the Veteran was informed of this fact and informed of his right to a hearing before a different Veterans Law Judge. In a March 2021 correspondence, the Veteran indicated that he did not desire another hearing. The Board will therefore proceed with adjudication of the claim at this time. At the time of the December 2019 remand, the issues of entitlement to service connection for obstructive sleep apnea, hepatitis C, and hypertension were also remanded. During the pendency of the remand, in an August 2020 rating decision, service connection for obstructive sleep apnea, hepatitis C, and hypertension were granted. As this is a full grant of the benefits sought on appeal, these issues are no longer before the Board. Entitlement to service connection for COPD The Board’s December 2019 remand directed that the Veteran be afforded a VA examination to assess the precise nature and etiology of the Veteran’s COPD. The examiner was directed to offer an opinion as to whether it is at least as likely as not that the Veteran’s COPD had its onset in service or was related to any in-service disease, event, or injury, to include exposure to dust, fuels, and solvents while serving as a wrecker driver; exposure to rocket fuels; or exposure to herbicides. It was directed that the examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. The Veteran underwent a VA examination in July 2020. The examiner indicated that the Veteran’s COPD was less likely than not related to service. The examiner stated that there was no diagnosis of COPD until 2008 and cigarette smoking was the principal risk factor for COPD. While exposures to chemical fumes, dusts, and other lung irritants account for 10-20 percent of cases, there was no objective evidence that Agent Orange was a causative agent. Based on the “many studies considered in various cohorts that applied different designs, measures of exposures, and definitions of non-malignant respiratory outcomes, the conclusion of inadequate or insufficient evidence of an association between exposure to the COI’s and mortality from all non-cancerous respiratory diseases or from COPD specifically had remained unchanged. (Veterans and Agent Orange: Update 11.2018).” In this case, the opinion is inadequate as the examiner indicated that exposures to chemical fumes, dusts, and other lung irritants accounted for 10-20 percent of cases but did not explain why the Veteran’s current COPD was not related to his exposure to dust, fuels, and solvents while serving as a wrecker driver and exposure to rocket fuels in service. The examiner provided conclusory statements and a broad citation to literature regarding Agent Orange exposure only. Accordingly, remand for a supplemental VA medical opinion is warranted. Entitlement to service connection for aortic aneurysm The Board’s December 2019 remand also directed that the Veteran be afforded a VA examination to assess the precise nature and etiology of the Veteran’s aortic aneurysm. The examiner was directed to offer an opinion as to whether it is at least as likely as not that the Veteran’s aortic aneurysm had its onset in service or is related to any in-service disease, event, or injury, to include exposure to dust, fuels, and solvents while serving as a wrecker driver; exposure to rocket fuels; or exposure to herbicides. The examiner was also directed to opine as to whether it is at least as likely as not that the Veteran’s aortic aneurysm is proximately due to or caused by the Veteran’s service-connected heart disability, and aggravated (worsened in severity beyond a natural progression) by the Veteran’s service-connected heart disability. It was indicated that the examiner must review and comment on private DBQs dated in November 2014 and January 2019, which both contain notations that the Veteran’s aortic aneurysm may be secondary to his heart disability. The Veteran underwent a VA examination in July 2020. The examiner indicated that the Veteran’s aortic aneurysm less likely than not related to service because it was not diagnosed until 2012 and that a nexus had not been established. The examiner also indicated that it was less likely than not that the Veteran’s aortic aneurysm was related to or aggravated by the Veteran’s service-connected heart disability. The examiner indicated that the Veteran had no service-connected cardiac condition and that there was no pre-existing aortic aneurysm prior to service. An addendum report was requested by the RO, and in October 2020, the examiner acknowledged that the Veteran was service-connected for coronary artery disease. The examiner stated that there was no medical evidence to support that coronary artery disease causes an aortic aneurysm to form. They are more common in males over the age of 60, with hypertension, and a history of smoking, which all applied to the Veteran. The aorta is not a coronary artery therefore the conditions are unrelated. No aggravation was plausible for that reason also. Another addendum opinion was provided in November 2020, where an examiner indicated that while hypertension is a risk factor, it is usually not possible to know exactly why one person develops a condition and another doesn’t. Certain risk factors may increase a person’s chances of developing a condition. Most risk factors are identified in epidemiology studies but such studies on their own cannot prove that a behavior or substance abuse causes any condition. There is no credible medical evidence that hypertension causes aortic aneurysm. It was also noted that the Veteran’s hypertension was well controlled and there was no evidence that it has resulted in aggravation of aortic aneurysm. The opinion discussing direct service connection is inadequate as the examiner only indicated that an aortic aneurysm was not diagnosed until 2012 and that a nexus had not been established. The examiner did not discuss the Veteran’s exposure to dust, fuels, and solvents while serving as a wrecker driver, and his exposure to rocket fuels and herbicides. Also, both addendum opinions did not review and comment on private DBQs dated in November 2014 and January 2019. Accordingly, remand for a supplemental VA medical opinion is warranted. All Issues Additionally, any private treatment records and VA treatment records not already associated with the claims file should be obtained on remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers who have treated him for his COPD and aortic aneurysm disabilities. Make two requests for any authorized records not already associated with the claims file unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 3. Obtain an addendum opinion regarding the etiology of the Veteran’s COPD. The electronic claims file must be made available to and be reviewed by the medical professional. Following a review of the medical and lay evidence of record as well as a copy of this remand, the medical professional is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s COPD had its onset in service or is related to any in-service disease, event, or injury, to include i) exposure to dust, fuels, and solvents while serving as a wrecker driver; ii) exposure to rocket fuels; or iii) exposure to herbicides. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 4. Obtain an addendum opinion regarding the etiology of the Veteran’s aortic aneurysm. The electronic claims file must be made available to and be reviewed by the medical professional. Following a review of the medical and lay evidence of record as well as a copy of this remand, the medical professional is requested to provide the following opinions: a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s aortic aneurysm had its onset in service or is related to any in-service disease, event, or injury, to include i) exposure to dust, fuels, and solvents while serving as a wrecker driver; ii) exposure to rocket fuels; or iii) exposure to herbicides. b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s aortic aneurysm is proximately due to or caused by the Veteran’s service-connected heart disabilities (to include coronary artery disease and hypertension). c) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s aortic aneurysm was aggravated (any worsening in severity beyond a natural progression) by the Veteran’s service-connected heart disability (to include coronary artery disease and hypertension). In providing these opinions, the medical professional must review and comment on private DBQs dated in November 2014 and January 2019, which both contain notations that the Veteran’s aortic aneurysm may be secondary to his heart disability. If necessary, and to the extent possible, the medical professional must reconcile their opinions with this evidence. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.