Citation Nr: 21029247 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-15 307A DATE: May 13, 2021 ORDER New and material evidence having been received, the claim to reopen entitlement to service connection for a respiratory disorder is granted. REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and a nervous condition, is remanded. Entitlement to service connection for a thyroid disability is remanded. Entitlement to service connection for arthritis is remanded. FINDINGS OF FACT 1. An unappealed July 1968 rating decision denied entitlement to service connection for a respiratory condition on the basis that the Veteran had a respiratory condition prior to service that was not aggravated by service. 2. The evidence associated with the claims file subsequent to the July 1968 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a respiratory condition. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 13, 1967 to February 19, 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. In June 2018, the Board remanded the appeal for further development. New and Material Evidence Respiratory Disability A July 1968 rating decision denied entitlement to service connection for a respiratory condition because the Veteran's respiratory condition existed prior to service and was not shown to have been aggravated by service. The pertinent evidence that has been received since the July 1968 rating decision includes post-service treatment records and a June 2015 VA examination report with an etiology opinion. The examination report indicates the Veteran was hospitalized during service for respiratory symptoms and indicated the records showed, "Since his arrival at Fort Jackson in Dec. 68, there had been worsening of cough with moderate production of sputum..." The Board finds that the new evidence obtained is not cumulative or redundant of the evidence previously of record. This new evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, reopening the claim of entitlement to service connection for a respiratory disorder is warranted. To that extent only, the appeal is allowed. REASONS FOR REMAND Respiratory Disorder As noted above, the Veteran was afforded a VA respiratory examination in May 2015. The Board finds this opinion is inadequate as it does not contain a rationale. The examination report indicates the Veteran was hospitalized during service for respiratory symptoms and indicated the records showed, "Since his arrival at Fort Jackson in Dec. 68, there had been worsening of cough with moderate production of sputum..." The examiner went on to issue a one sentence opinion indicating the Veteran's chronic bronchitis clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by his service. There was no rationale for this opinion and no discussion of the indication that the Veteran entered service with a respiratory condition with a report of worsening symptoms after the arrival to Fort Jackson. Consequently, a remand is required to obtain an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes action to provide an examination or obtain a medical opinion, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made). Acquired Psychiatric Disorder, Thyroid Disability, and Arthritis Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the remaining issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The June 2018 remand noted that the Veteran reported treatment for his claimed disabilities within a year of discharge from service, and thus instructed the RO to obtain treatment records prior to 1966. In April 2019, the Veteran submitted a VA Form 21-4142 (Authorization for Release of Information), which indicated treatment from 1967 to the present at the VA San Juan Caribbean Hospital, as well as treatment from 1973 to the present at the VA Mayaguez Outpatient Clinic. The RO attempted to obtain these treatment records. In April 2019, a response indicated the records request "did not meet the criteria for action under the PMR Program Guideline. It suggested this was due to a "Foreign Veteran Address." The response indicted, "Based on the above information, the request for the above Veteran/Patient must be worked via the traditional process." The RO also utilized the PIES system and a negative response was received due to no information being provided related to the name/location of the hospital where the Veteran was treated. Another internal memorandum in the claims file show the RO requested VA records from October 1996 and earlier and the response received indicated, "Our system of records shows that we sent copies to PHOENIX, VARO on March 14, 2019." No further action was taken by the RO related to any records between the Veteran's service and October 1996. The December 2020 supplemental statement of the case (SSOC) indicates, "On March 21, 2019 we received your San Juan VAMC treatment Records prior to November 6, 1996." Records dated between 1996 and 2003 were added to the file in March 2019. However, the RO did not seek further records related to the Veteran's reported treatment prior to 1996, to include the records identified in the Veteran's April 2019 VA Form 21-4142. This was the subject of the prior Board remand. The RO has, therefore, not substantially complied with the prior Board remand instructions. Consequently, the Board has no choice but to again remand these claims. The matters are REMANDED for the following action: 1. Attempt to obtain the records identified in the Veteran's April 2019 VA Form 21-4142, including treatment from 1967 to the present at the VA San Juan Caribbean Hospital, as well as treatment from 1973 to the present at the VA Mayaguez Outpatient Clinic. Efforts to obtain the additional evidence must be documented in the claims file. If these records are deemed unavailable, the RO must notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion for the claimed respiratory disorder. The examiner must have access to the entire claims file, and must note review of the evidence. The Board leaves it to the clinician providing the report to determine whether additional physical examination of the Veteran is necessary. The examiner is asked to clarify all respiratory diagnoses present during the claim period. The examiner is also asked to opine whether any currently diagnosed respiratory disability clearly and unmistakably (undebatable) preexisted the Veteran's service. If the examiner finds any currently diagnosed respiratory disorder did clearly and unmistakably preexist service, the examiner must then opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that any current respiratory disorder either did not clearly and unmistakably preexist service, or was not clearly and unmistakably not aggravated by service, the examiner must opine whether the current respiratory disorder is at least as likely as not related to an in-service injury, event, or disease, including related to the symptoms treated during the Veteran's service. The report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 3. Then, readjudicate the Veteran's claims based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.