Citation Nr: 21026675 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 19-00 233A DATE: May 3, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as asthma, is remanded. Entitlement to service connection for an upper back disability, claimed as upper back injury residuals, is remanded. Entitlement to service connection for a lower back disability, claimed as lower back injury residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1962 to March 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2018 and July 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with the determinations in a timely manner, and the present appeal ensued. In January 2021 the Veteran testified at a virtual Board hearing conducted by the undersigned Veterans Law Judge (VLJ). A copy of the January 2021 hearing transcript is associated with the electronic claims file. 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as asthma is remanded. While further delay is regrettable, it is necessary in order to obtain an adequate medical opinion regarding the etiology of the Veteran's COPD. The Veteran's service treatment records note complaints of cough and sore throat in December 1962 and in February and March 1963. The service treatment records also contain a note that after a February 1963 chest x-ray the Veteran was diagnosed with bronchitis. The Veteran's private medical record reflects a diagnosis of COPD, and treatment for COPD, asthma, and bronchitis. In December 2017 the Veteran was provided with a VA medical examination for his COPD. The VA examiner opined that the Veteran's COPD was less likely than not related to the Veteran's military service as his exit examination did not note any pulmonary conditions. The examiner also relied on a lack of diagnosis of COPD until 2016 for the conclusion that the Veteran's COPD is not related to service. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Board acknowledges that the Veteran has submitted two statements from his private provider regarding his COPD diagnosis. In a February 2018 statement the private provider noted that the Veteran has intermittent mild asthma and COPD. In June 2018, the Veteran submitted a private medical opinion in support of his claim, in which the Veteran's private doctor simply stated that the Veteran is a non-smoker and may have been exposed to "environmental concern" on active duty. The Board finds that the June 2018 private medical opinion is inadequate to decide this case. The Board has reached this conclusion because this opinion is speculative in nature and it does not provide a sufficient rationale as to what in-service event caused the Veteran to develop a respiratory disorder. Thus, for the above stated reasons, the Board finds that a remand is required in order to obtain a more complete medical opinion as to the nature and etiology of the Veteran's respiratory disability. 2. Entitlement to service connection for an upper back disability, claimed as upper back injury residuals is remanded. 3. Entitlement to service connection for a lower back disability, claimed as lower back injury residuals is remanded. While further delay is regrettable, it is necessary in order to obtain a VA examination and medical opinion regarding the Veterans back disabilities. The Veteran contends that his lower and upper back disabilities began after an in-service fall around December 1962. The Board notes that the Veteran is currently service connected for right arm disabilities related to this incident. The Veteran has consistently stated that he did not seek treatment for his back immediately after the fall because his arm injury was more concerning than the bruises on his back. The Veteran's service treatment records contain notes of the December 1962 fall, and note complaints of back pain in December 1962. In June 2018, the Veteran's private doctor stated that the Veteran has required recurrent assessment and treatment for back pain and sciatica triggered by life events but initiated while serving in the military. In July 2018, the Veteran submitted a Disability Benefits Questionnaire (DBQ) from the same private provider. The private provider indicated that the Veteran has diagnoses of chronic lumbar pain, cervical disc disease, and degenerative disc disease. The Board notes that the private examination report does not contain a nexus opinion. The Board finds that the June 2018 private medical opinion is inadequate to decide this case. The Board has reached this conclusion because the Veteran's private doctor did not provide a thorough rationale as to what specific diagnoses are related to the Veteran's in-service fall. Moreover, the doctor's opinion pointed to life events triggering the Veteran's spinal issues but did not provide a thorough analysis as to why the Veteran's in-service fall is the source of his current spinal complaints and not the post-service life events. The Board notes that the Veteran has not been afforded a VA examination for these disabilities. According to McLendon, an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury, or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board notes that that Veteran stated that he injured his back on active duty. Moreover, the record reflects that the Veteran has been diagnosed with degenerative disc disease and there is an indication that the current disorders may be related to his military service. Lastly, there is insufficient evidence to decide this case. As the Board finds that the criteria set forth in McLendon has been met to these claims, a VA examination should be obtained. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit or authorize the release of private treatment records pertaining to these disabilities. 2. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of the Veteran's COPD and/or other respiratory disability and back disabilities. The electronic claims file must be reviewed by the examiner. After a review of the claims file, the examiner is asked to provide the following opinions regarding the Veteran's COPD and/or other respiratory disorder such as asthma and bronchitis: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's COPD, asthma, bronchitis, or other current respiratory disability was caused by, incurred during, or is otherwise related to his active service? (b.) In providing this opinion the examiner must specifically address the etiology of the Veteran's COPD, asthma, bronchitis, or other respiratory disability related to (i) the in-service complaints of cough and chest pain and (ii) the February 1963 diagnosis of bronchitis. After a review of the claims file, the examiner is asked to provide the following opinions regarding the Veteran's back disabilities: (a) Identify all diagnosed upper and lower back disabilities. (b) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed back disability was caused by, incurred during, or is otherwise related to the Veteran's service? (c) In providing this opinion the examiner is must specifically address the etiology of the Veteran's back disabilities related to (i) the December 1962 fall, (ii) the December 2017 and June 2018 comments from the Veteran's private provider, and (ii) the March 2008 note in the Veteran's private medical records of a motor vehicle accident. In providing the requested opinions, the examiners should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.