Citation Nr: 21027929 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-36 790 DATE: May 7, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a videoconference hearing before a Veterans Law Judge, but later withdrew this hearing request through counsel in February 2020. Accordingly, the hearing request is considered withdrawn, and the Board will proceed with the appeal. In November 2017, the Agency of Original Jurisdiction found that new and material evidence had been received to reopen the issue of entitlement to service connection for chronic obstructive pulmonary disease, to include as due to exposure to asbestos. See November 2017 Statement of the Case (SOC). Although further delay is regrettable, the Board finds a remand is necessary in this case to ensure due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for chronic obstructive pulmonary disease, to include as due to exposure to asbestos, is remanded. The Veteran contends he is entitled to service connection for chronic obstructive pulmonary disease (COPD) due to his military service, to include as due to exposure to asbestos. The Veteran was afforded a VA respiratory conditions examination in June 2016 wherein the examiner confirmed a current diagnosis of COPD. Thereafter, the examiner opined that it was less likely as not that the Veteran's COPD was related to his exposure to asbestos during military service. In support of this conclusion, the examiner stated the Veteran has no evidence of asbestosis, or even pleural plaques on his most recent CT scan. The examiner concluded COPD is caused by smoking; the examiner noted the Veteran quit smoking in 2008. The Board finds this medical opinion to be inadequate for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the examiner did not address the Veteran's lay statement that, "while serving at Fort Bragg I served as a mechanic and regularly worked with brake pads and other materials that were covered in a white powdery substance I now believe to be asbestos. I believe my exposure to this material has contributed to or aggravated my current medical condition." See May 2016 Statement in Support of Claim. Additionally, the examiner did not address the medical journal articles correlating asbestos exposure and COPD. See May 2016 Exhibit 2: (1) "Increased mortality in COPD among construction workers exposed to inorganic dust"; (2) "Emphysema in Silica- and Asbestos-Exposed Workers Seeking Compensation* A CT Scan Study"; (3) "Exposure To Asbestos: A Resource For Veterans, Service Members, And Their Families"; and (4) Agency For Toxic Substances And Disease Registry (ATSDR) Asbestos Fact Sheet. Furthermore, in June 2016, the Veteran provided an additional lay statement detailing his exposure to asbestos. See June 2016 Statement in Support of Claim. The Veteran submitted two additional journal articles correlating asbestos exposure and COPD. See (1) "Asbestos-Automotive Brake and Clutch Repair Work" and (2) "Exposure to Brake Dust and Malignant Mesothelioma: A Study of 10 Cases with Mineral Fiber Analyses." The Board cannot make a fully informed decision on the issue of entitlement to service connection for COPD because the June 2016 examiner's opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). The medical opinion is inadequate as it is not supported by sufficient rationale and does not consider all of the relevant evidence of record. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the issue of service connection for COPD is remanded to obtain an addendum opinion. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports regarding onset of his COPD. Rather, the Board is merely requesting that the clinician on remand consider the Veteran's own descriptions of the history of his COPD. See Smith v. Wilkie, 32 Vet. App. 332 (2020). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should afford the Veteran the opportunity to submit or identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appropriate authorization is provided. 2. The AOJ should ensure all outstanding VA treatment records are associated with the claims file, to include up to date VA treatment records since January 2016. 3. After the above is completed, the AOJ should obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's COPD. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. The Veteran's claims file and a copy of this Remand should be provided to the examiner and the examination report should reflect that these items were reviewed. Thereafter, the examiner should address the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's COPD had its onset in service or is otherwise related to service, to include as due to exposure to asbestos. (a.) In providing the requested opinion, the examiner must address the Veteran's statements regarding onset, in-service incurrence, and continuity of symptomatology since service separation. (The Board reminds the Veteran that in asking the examiner to accept the history he provides the Board is not at this time assessing the credibility of his statements.) (b.) In providing the requested opinion, the examiner must consider and discuss the pertinent articles submitted with the May 2016 Brief in Support of Appeal, as well as the pertinent articles submitted with the Veteran's June 2016 Statement in Support of Claim. (c.) Additionally, while an absence of in-service complaints or treatment may be considered, the absence of such should not form the sole basis of a negative opinion. (d.) A complete rationale for any opinion rendered must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and what, if any, additional evidence would permit such an opinion to be made. 4. The AOJ must review the addendum opinion to ensure compliance with the Remand directives. If the addendum report is deficient in any manner, take corrective action prior to returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.