Citation Nr: 21027868 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 07-34 835A DATE: May 7, 2021 REMANDED The issue of service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, asthma, bronchitis and pulmonary hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1967 to October 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Atlanta, Georgia Regional Office (RO). This appeal has been remanded by the Board seven times, denied by the Board three times and the U.S. Court of Appeals for Veterans' Claims (Court) has granted three Joint Motion for Remands (JMRs) vacating and remanding the Board's denial of the claim due to relying on previous inadequate VA negative etiology opinions. In October 2020, the most recent Board action, the Board remanded the appeal for a VA addendum opinion. The examiner provided a negative etiology opinion because there was no documentation of respiratory symptoms or complaints during or shortly after service; however, the examiner did not consider the Veteran's competent statement of experiencing respiratory symptoms after service. Barr v. Nicholson, 21 Vet. App. 303 (2007). The addendum opinion was inadequate, and therefore, not substantially compliant with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Respiratory disorder The matter is remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The issue as to a current diagnosis and an in-service event, injury or disease is not in dispute. The evidence reflects the Veteran is diagnosed with chronic obstructive pulmonary disease, asthma, bronchitis, and pulmonary hypertension. The Veteran WAS EXPOSED TO HERBICIDES (AGENT ORANGE) during his Vietnam service and may have been exposed to gunpowder residue due to his duty specialty as a Basic Field Artilleryman. The Veteran's military personnel records reflect service in the Republic of Vietnam from April 1968 to April 1969 and his report of separation from the armed forces reflects that the Veteran's duty specialty was Basic Field Artilleryman. The Veteran is therefore presumed to have been exposed to herbicide agents and the Veteran has substantiated having been exposed to gunpowder residue due to his duty specialty. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.307(a)(6)(iii). The record reflects inadequate non-VA and VA medical opinions, and therefore, a remand is warranted for a VA examination and medical opinion with and from a VA pulmonologist. 2. Schedule the Veteran for a VA examination with a VA pulmonologist to obtain an opinion as to the nature and etiology of his respiratory disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. THE EXAMINER MUST RESPOND TO THE QUESTION OF whether the Veteran's respiratory disorder, to include chronic obstructive pulmonary disease, asthma, bronchitis and/or pulmonary hypertension caused by the Veteran's CONCEDED exposure to Agent Orange and/or gunpowder residue during service? THE EXAMINER IS ADVISED AS TO THE FOLLOWING: THE VETERAN IS PRESUMED SOUND AT SERVICE ENTRANCE AS TO HIS LUNGS AND/OR RESPIRATION. THE VETERAN IS PRESUMED TO HAVE BEEN EXPOSED TO HERBICIDE AGENTS AND HAS SUBSTANTIATED HAVING BEEN EXPOSED TO GUNPOWDER RESIDUE DURING SERVICE. THE VETERAN IS COMPETENT TO REPORT HAVING EXPERIENCED RESPIRATORY SYMPTOMS IN THE 1970s AND 1980s DESPITE THE LACK OF DOCUMENTATION. THE VETERAN IS CREDIBLE IN HIS REPORT. ALL PREVIOUS VA MEDICAL OPINIONS HAVE BEEN DEEMED INADEQUATE AND RELIANCE ON THOSE OPINIONS WILL LIKELY RESULT IN AN INADEQUATE MEDICAL OPINION. Although the examiner must review the VBMS file, his or her attention is drawn to the following: In his October 1969 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had asthma, shortness of breath, or chronic cough. In the Veteran's October 1969 pre-separation medical examination report, no lung abnormalities were noted. In his October 1969 service statement of medical condition, the Veteran reported experiencing no change in his medical condition since his most-recent separation medical examination. A December 1993 non-VA treatment record reflects the Veteran's report of experiencing a cold, cough, fever and headaches. The Veteran was diagnosed with acute bronchitis. A September 1994 non-VA treatment record reflects the Veteran's report of experiencing a cold and cough. No diagnosis was provided. A July 1999 VA treatment record noted an upper respiratory infection and coughing. A January 2001 non-VA treatment record reflects the Veteran's report of experiencing chest congestion, cough, sore throat and wheezing. It was then-noted that the Veteran quit smoking cigarettes approximately four years ago. The Veteran was assessed with an upper respiratory infection and bronchitis without bronchospasm. In a December 2002 non-VA treatment record, the Veteran reported experiencing chest congestion, body aches, productive cough and frequent recurrences of bronchitis that usually occurred during winter. A history of tobacco smoking was noted but the Veteran reported having then-quit approximately six years ago due to his recurrent bronchitis. A lung examination revealed decreased breath sounds bilaterally with fine difficult to hear wheezes bilaterally and mild crackles. The Veteran was assessed with "acute versus chronic bronchitis." A December 2002 non-VA treatment record reflects the Veteran's report of experiencing sinus congestion, post-nasal drainage and cough productive of purulent sputum. A chest radiograph revealed COPD. The Veteran was diagnosed with bronchitis NOS and COPD. A January 2003 non-VA treatment record reflects the Veteran's report of experiencing an acute shortness of breath in 1972. The Veteran reported having smoked "up to two packs of cigarettes per day for almost 40 years" and having then-quit approximately six years ago. A January 2003 non-VA chest radiograph revealed hyperinflation and enlarged pulmonary arteries. Spirometry testing revealed severe obstruction with a FEV1 of 0.67 percent or 26 percent predicted. The January 2003 non-VA examiner diagnosed the Veteran with severe COPD "on the basis of smoking and possibly underlying asthma." It was noted that the Veteran's increased pulmonary artery size was likely related to his severe obstructive lung disease and borderline oxygenation. It was also noted that the Veteran's oxygenation was secondary to his obstructive lung disease and obesity. A February 2003 VA pulmonary function testing revealed severe airflow obstruction with significant response to bronchodilator, air trapping and mild decrease in diffusion. An April 2003 VA treatment record noted a history of asthma/chronic lung disease and the Veteran was provided home oxygen and prescribed Combivent. The Veteran then-reported having quit smoking cigarettes approximately six years ago. Pulmonary function testing revealed severe airflow obstruction with significant response to bronchodilator, air trapping and mild decrease in diffusion. The impression was "COPD with home oxygen/inhalers." An April 2003 VA chest radiograph revealed no acute cardiopulmonary, pleural, or osseous abnormalities. In an October 2003 letter, a non-VA medical provider indicated having treated the Veteran for acute bronchitis in the 1970s and 1980s. In a November 2003 VA treatment record, the Veteran was assessed with "COPD oxygen dependent." A June 2004 VA treatment record noted a history of COPD and chronic bronchitis since 1970. An August 2004 non-VA treatment record reflects the Veteran's report of experiencing shortness of breath for many years, associated cough, mucoid expectoration and wheezing. The Veteran reported having smoked one pack of cigarettes per day between 1970 and 1990. A chest radiograph revealed findings consistent with COPD but no evidence of pneumonia or pulmonary edema. He was diagnosed with COPD. An August 2005 VA spirometry testing revealed severe obstructive airflow disease with air trapping and minimal response to bronchodilator. The Veteran was diagnosed with COPD. An August 2006 social security administration (SSA) disability determination reflects a diagnosis of chronic pulmonary insufficiency and asthma. A March 2007 VA treatment record reflects a diagnosis of COPD. In a June 2009 VA treatment record, a VA pulmonologist noted that November 2008 pulmonary function testing revealed severe obstructive ventilatory defect with a component of bronchospasm and DLCO was remarkably preserved suggesting severe asthma or bronchitis with minimal emphysema. The Veteran was assessed with well-controlled but severe obstructive airway disease ASA class-III with mild to moderate increased risk for post-op pulmonary complications. A December 2010 VA treatment record noted a significant history of COPD, "bronchitis on and off," shortness of breath, cough and wheezing. The Veteran was diagnosed with COPD exacerbation and bronchitis. A February 2011 VA chest radiograph revealed COPD and no evidence of pneumonia, pulmonary edema, or pleural effusion. It was noted that the Veteran's lungs were hyperinflated consistent with COPD. Statements dated April 2011 and May 2011 from the Veteran's friends and relatives reflect having observed the Veteran experience trouble with breathing. A March 2012 VA treatment record reflects the Veteran's diagnosis of asthma unspecified type. A March 2013 VA chest radiograph revealed COPD with chronic lung changes and apical pleural thickening. An August 2018 VA treatment record reflects a diagnosis of COPD. 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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.