Citation Nr: 21026273 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-00 928 DATE: April 30, 2021 REMANDED Entitlement to service connection for right knee injury is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran has active service from March 1986 to March 1990. This case is before the Board of Veterans’ Appeals (Board) from the January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a January 2020 hearing. In an April 2020 decision the Board found new and material evidence had been received and reopened the claims. These matters were remanded to the RO for additional development in April 2020 and again in January 2021, for addendum opinions. Unfortunately, although additional medical opinions were obtained, for the reasons set forth below, they are inadequate. Finding there was not substantial compliance with prior remand directives, remanded is again required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Right Knee. On remand, the examiner was directed to reconcile the conflicting medical evidence of record to the extent possible, specifically including the February 2020 private medical opinion of record. The examiner was also to address whether the December 2011 notation of chronic right knee pain, prior to the September 2014 notation denying any problems with right knee, supports the assertion that the Veteran’s current knee condition was not the direct result of a 2014 on the-job injury, and there was continuity of symptoms from service to the present (1/06/2021 BVA Decision). In the February 2021 addendum opinion, the examiner explained that there was a lack of objective medical evidence in the available medical records confirming the chronicity of a chronic right knee condition while on active duty. There is no objective medical evidence noted in the available medical records showing a link between the Veteran’s current right knee condition and the Veteran’s time in military service. The examiner considered the December 2011 evaluation noting a compliant of chronic right knee pain and January 2015 orthopedic evaluation for right knee pain at which time the Veteran denied prior problems with this right knee prior to the fall and interpreted x-rays and see no bony abnormalities. The examiner noted the Veteran underwent an MRI of the right knee that showed evidence of posterior horn lateral meniscus tear and mild osteoarthritic changes, noting an impression of right knee medial meniscus tear, lateral meniscus tear, and osteoarthritis. The examiner noted the September 2015 medical records reflecting a 20-year history of complaints of right knee pain. February 2020 medical records attributed right knee pain to a fall the day prior. The examiner concluded, per the available medical records, the Veteran continues to complain of right knee pain (2/04/2021 C&P Exam, pg. 3). Although the examiner provided an accounting of the Veteran’s medical history, the prior remand directives were not addressed. Specifically, the examiner did not address the February 2020 private medical opinion of record that states the Veteran’s current ankylosis and adhesions of his right knee are the result of his previous injury, in 1987. The February 2020 opinion noted suture removal on June 2, 1987, finding it is a reasonable medical conclusion that the Veteran had 2 separate injuries and at least as likely as not the cause of his current right knee pain (2/06/2020 Medical Treatment Record - Non-Government Facility, pg. 7). Additionally, the examiner did not address whether the December 2011 notation of chronic right knee pain, which pre-dated the Veteran’s September 2014 denial of any problems with right knee, supports the present question as to whether the Veteran’s current knee condition has persisted since service and was not the direct result of a 2014 on the-job injury. Because the prior remand directives have not been complied with, additional remand is necessary. 2. COPD. Prior remand directives for COPD included addressing whether any existing respiratory disorder is at least as likely as not related to an in-service injury, event, or disease, including specifically the Veteran’s described asbestos exposure while chipping a bulkhead wearing a respirator aboard the USS INDEPENDENCE (CV 62). The examiner was asked to opine as to whether the Veteran’s current respiratory diagnosis is an extension of or related to in-service complaints of respiratory illness, to include bronchitis and sinus issues, as contended by the Veteran and noted on his entrance physical. The examiner was also asked to address why it was not feasible to obtain an additional PFT (1/06/2021 BVA Decision). The examiner was also directed to reconcile any conflicting medical evidence of record to the extent possible, specifically including the February 2020 private medical opinion of record. The VA addendum included a negative nexus opinion, citing the absence of a chronic diagnosis is made for chronic obstructive pulmonary disease while on active duty and subjective symptoms only. The examiner noted that the Veteran’s separation examination showed recurrent upper respiratory infections, with no mention of COPD. The examiner noted the Veteran’s history of COPD was not noted until September 2013, describing COPD as a chronic inflammatory disease, causing obstructed airflow from the lungs. The examiner explained the main causes of COPD as smoking, genetics, or due to or other irritants from second-hand exposures. In formulating the negative nexus opinion, the examiner relied on the lack of sufficient objective medical evidence noted in the available medical records showing a link between the Veteran’s current diagnosis of COPD and the Veteran’s time in military service (2/04/2021 C&P Exam). The Board finds the February 2021 opinion is insufficient because it does not address the February 2020 private opinion that any pulmonary condition now causing the need for continuous oxygen should be service connected due to the Veteran’s recurrent complaints of cough shortness of breath and chest pain and documented physical finding of wheezing while actively working aboard ship. The physician concluded any current diagnosis for the Veteran’s difficulty breathing is at least as likely as not to have begun while working in a noxious environment during his time in the service (2/06/2020 Medical Treatment Record - Non-Government Facility, pg. 7). Additionally, in the consideration of the main causes of COPD, the examiner did not address that the Veteran has denied a history of smoking (1/13/2020 Hearing Transcript, pg. 6) and while the addendum addressed asbestos exposure, the examiner did not address the Veteran’s contended exposure to other irritiants: in-service sandblasting, welding, fire watching, drilling into lead-based paint, breathing strong fumes and exposure to other elements of shipyard work (1/13/2014 VA 21-4138 Statement In Support of Claim). Because the prior remand directives have not been complied with and all of the Veteran’s lay contentions were not addressed, additional remand is necessary. The matters are REMANDED for the following action: 1. Regarding right knee injury, forward the claims file to the August 2020 knee examiner if available (if not available, to a comparably qualified and appropriate clinician) for an addendum opinion consistent with this remand. If the following cannot be addressed without an examination, an examination should be scheduled. The examiner should reconcile the conflicting medical evidence of record to the extent possible, specifically including the February 2020 private medical opinion of record that states the Veteran’s current ankylosis and adhesions of his right knee are the result of his previous injury, in 1987. The February 2020 opinion noted suture removal on June 2, 1987, finding it is a reasonable medical conclusion that the Veteran had 2 separate injuries and at least as likely as not the cause of his current right knee pain. Additionally, the examiner should address whether the December 2011 notation of chronic right knee pain, which pre-dated the Veteran’s September 2014 denial of any problems with right knee, supports the present question as to whether the Veteran’s current knee condition has persisted since service and was not the direct result of a 2014 on the-job injury. If not, the examiner should explain why. The examiner is reminded to consider the Veteran’s lay reports, and a reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. A comprehensive rationale for all opinions expressed must be provided. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Regarding COPD, forward the claims file to the August 2020 respiratory condition examiner if available (if not available, to a comparably qualified and appropriate clinician) for an addendum opinion consistent with this remand. If the following cannot be addressed without an examination, an examination should be scheduled. The examiner must provide an opinion whether any existing respiratory disorder is at least as likely as not (50 percent probability or more) related to an in-service injury, event, or disease. In doing so, the examiner should address the February 2020 private opinion that any pulmonary condition now causing the need for continuous oxygen should be service connected due to the Veteran’s recurrent complaints of cough shortness of breath and chest pain and documented physical finding of wheezing while actively working aboard ship. The physician concluded any current diagnosis for the Veteran’s difficulty breathing is at least as likely as not to have begun while working in a noxious environment during his time in the service. With regard to the examiner’s description of the main causes of COPD, being smoking, genetics, or due to or other irritants from second-hand exposures, the examiner should specifically address the Veteran’s denial of a history of smoking, and described in-service exposure to other irritants: in-service sandblasting, welding, fire watching, drilling into lead-based paint, breathing strong fumes and exposure to other elements of shipyard work. The examiner is reminded to consider the Veteran’s lay reports, and a reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. A comprehensive rationale for all opinions expressed must be provided. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.