Citation Nr: 21026207 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 10-36 096 DATE: April 30, 2021 REMANDED Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (“COPD”), asthma, bronchitis, allergic rhinitis, and hay fever, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to July 1972. This matter came before the Board of Veterans’ Appeals (“Board”) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran testified at a Board’s hearing before the undersigned Veterans Law Judge in April 2014. A transcript of the hearing is associated with the record. The Board subsequently remanded this matter in May 2014. Following this remand, the Board denied service connection for the Veteran’s claim in a February 2017 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (“CAVC”). In a July 2018 decision, CAVC vacated the Board’s February 2017 decision, and remanded the matter for additional development and readjudication. Following the CAVC decision, the Board remanded this matter in March 2019 and October 2020. In the recent October 2020 remand, the Board directed the RO to obtain a new VA opinion on the etiology and nature of the Veteran’s COPD and any other diagnosed respiratory disorder. Pursuant to the Board’s October 2020 remand, the RO obtained a medical opinion in March 2021. However, the Board finds the March 2021 opinion inadequate for deciding the issue on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Regrettably, the Board finds that further remand is necessary in this matter. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (“COPD”), asthma, bronchitis, allergic rhinitis, and hay fever, is remanded. Initially the Board notes that the Veteran filed a claim of service connection for COPD, so the issue was previously listed as “entitlement to service connection for chronic obstructive pulmonary disease (COPD).” However, in its July 2018 decision, CAVC directed the Board to identify all disorders that fall within the Veteran’s claim. Hence, pursuant to CAVC decision and to allow for the most favorable review of the evidence and the claim, the Board is recharacterizing the issue as seen above. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran asserts that he suffers from COPD due to exposure to aviation fuel fumes as well as exposure to dust from scraping the deck while aboard an aircraft carrier during his military service. At the April 2014 Board’s hearing, the Veteran’s representative stated that the Veteran’s pulmonary problem started after exposure to paints and other substance during his service on the Navy ship. The Veteran’s wife testified that the Veteran was treated first time for a chest condition during service in January 1971, where he was prescribed Actifed and Benylin. She further testified that the Veteran was treated again in March 1972 and in July 1972 during service, and he was taking Robitussin to treat his condition. One month after separation from service in August 1972, the Veteran was diagnosed with asthmatic bronchitis and allergic rhinitis. In his October 2001 statement, the Veteran stated that he was first time told that he had asthma upon his discharge from the service in July 1972. He further stated that he did not take any medication for asthma. In October 2020, the Board remanded the matter to obtain medical opinion on etiology of the Veteran’s COPD and any other diagnosed respiratory disorder. The Board directed the examiner to opine whether the Veteran has asthma and/or hay fever, and whether they were clearly and unmistakably pre-existed the service and if so, whether it is clear and unmistakable that these conditions were not aggravated beyond the natural progression. Furthermore, the examiner was directed to discuss the Veteran’s history of smoking and quitting it in 1979; and discuss any relationship of smoking with COPD. Pursuant to the October 2020 Board’s remand, a VA medical opinion was obtained in March 2021, in which the examiner noted diagnosis of COPD, asthma, bronchitis, allergic rhinitis and hay fever. Regarding asthma and hay fever, the examiner opined that these conditions were clearly and unmistakably pre-existed the Veteran’s military service because pre-enlistment medical history in service treatment records (“STRs”) noted these conditions dating back to childhood. However, the Board notes that the July 1970 enlistment examination only noted hay fever, not asthma. Furthermore, the examiner opined that it is clear and unmistakable that the asthma and/or hay fever was not aggravated beyond the natural progress of the disability. As a rationale, the examiner stated the available STRs failed to support aggravation, since asthma and hay fever were treated only once during service, and the Veteran’s initial visits to VA hospital from 1998 to 2000 did not note complaints about these conditions. Whereas, the Board notes that per STRs the Veteran was treated for chest pain in January 1971, and chest congestion and hay fever in March 1972; however, the STRs do not indicate treatment for asthma. The first indication of asthma is noted one month after separation in August 1972 treatment record, when the Veteran was diagnosed with allergic rhinitis and asthmatic bronchitis. Therefore, the Board finds that an addendum opinion is required to address these discrepancies and to clarify if asthma and hay fever are the same or different diseases because the Board does not have medical expertise. Regarding COPD, the examiner opined that it is not likely that the Veteran’s COPD is related to his time in service. As a rationale, the examiner stated that the Veteran’s COPD was diagnosed 36 years after leaving the service, and STRs failed to document a diagnosis of COPD during active service or within two years after service. Whereas, the Board notes that the examiner did not discuss in-service treatment for chest congestion and chest pain in rendering this opinion. Furthermore, the lack of contemporaneous records does not preclude granting of service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim). The examiner also addressed the smoking and stated that the smoking is leading cause of COPD and 15 to 20 percent of smokers develop this disease. However, the Board finds that the examiner did not discuss the gap between quitting of smoking in 1979, and onset of COPD in 1996, when it was specifically directed to do so per October 2020 Board’s remand. This was also noted in July 2018 CAVC decision, requiring an explanation of why the temporal gap between the Veteran’s in-service treatment of chest pain and chest congestion, and his diagnosis of COPD indicates that the two are not linked; but the temporal gap between the date he quit smoking and his diagnosis of COPD is no impediment to finding an association. Consequently, the Board finds that an addendum opinion is warranted to address all questions raised above for assisting the Board in rendering an informed decision. The matter is REMANDED for the following action: 1. Forward the claims file, and a copy of this remand and July 2018 CAVC decision to the examiner who rendered the March 2021 medical opinion, or to an appropriate clinician if the March 2021 examiner is unavailable, to obtain an addendum opinion on the nature and etiology of the Veteran’s lung disorder, to include COPD, asthma, bronchitis, allergic rhinitis, and hay fever. In-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. 2. After reviewing the claims file, the examiner should address the following: (a) Whether the evidence of record clearly and unmistakably shows (i.e., it is undebatable) that the Veteran had a lung disorder, including asthma, bronchitis, allergic rhinitis, and hay fever that existed prior to his entry into the military service. In providing this opinion, the examiner should consider that only hay fever and not any other lung disorder was noted in July 1970 enlistment examination. See document associated with claims file with entry date 05/23/2014, titled, “STR – Medical,” page number 3 to 10. (b) If any of the lung disorder, including asthma, bronchitis, allergic rhinitis, and hay fever existed prior to the Veteran’s entry into service, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the preexisting lung disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease? In providing this opinion the examiner should consider and discuss in-service chest congestion, chest pain and treatment of hay fever; and diagnoses of asthmatic bronchitis and allergic rhinitis noted one month after the separation from service in August 1972 treatment record, which is associated with claims file with entry date 08/29/1972, titled “Medical Treatment Record – Government Facility.” (c) If the examiner determines that any or all of the above described lung disorders did not exist prior to the Veteran’s entry into the military service, then examiner is asked to determine whether it is at least as likely as not that any of the lung disorder, including asthma, bronchitis, allergic rhinitis, and hay fever had onset during his period of active service, or related to an in-service injury, event, or disease, including chest pain and congestion, and treatment for hay fever during service, or the claimed exposure to aviation fuel fumes, and dust from scraping the deck while working on the flight deck during service. (d) If the examiner determines that the above described or any diagnosed lung disorder is related to service, then the examiner is also asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD was (i) proximately due to or (ii) aggravated beyond its natural progression by a lung disorder, including asthma, bronchitis, allergic rhinitis, and hay fever. (e) The examiner is also asked to opine whether it is at least as likely as not that the Veteran’s COPD had onset during his period of active service, or related to an in-service injury, event, or disease, including, chest pain and congestion, and treatment of hay fever during service, or the claimed exposure to jet fuel and hazardous substances while working on the flight deck in service. In providing this opinion the examiner should take into consideration the gap in time between the possible causes of COPD (such as exposure to fumes in service which ended in 1972 or the period of time when the Veteran smoked which ended in 1979) and the date of diagnosis of COPD in 1996. The examiner should consider and address the Veteran’s smoking of 1/2 pack of cigarettes per day for 16 years until he quit in 1979, which is noted in treatment record associated with the claims file with entry date 05/27/1990, titled “Medical Treatment Record – Government Facility,” page number 17. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. (Continued on the next page)   3. Thereafter, if the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.