Citation Nr: 21029564 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-35 978 DATE: May 13, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure, to include as secondary to service-connected post-traumatic stress disorder (PTSD), is remanded. Introduction The Veteran served honorably on active duty in the United States Navy during the Vietnam Era, from September 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this matter came before the Board in April 2018, it was remanded for additional development. The Board observes the additional development has been conducted and the matter returns to the Board for further appellate review. For the reasons discussed below, the Veteran's claim for entitlement to service connection for a respiratory disability has been recharacterized as reflected above. The Board notes the issue of whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for hypertension was previously remanded in January 2020. Upon review, the Board observes the matter is still pending additional development and adjudication by the RO and, thus, will not be addressed herein. While further delay is regrettable, for the reasons set forth below, the Board finds there has not been substantial compliance with the prior remand directives such that remand is again required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND Entitlement to service connection for a respiratory disability, to include COPD, to include as due to asbestos exposure, to include as secondary to service-connected PTSD, is remanded. In essence, the Veteran currently maintains two theories of entitlement. First, he contends his COPD was caused by exposure to asbestos while aboard naval vessels. Alternatively, he contends his COPD is due to smoking caused by service-connected PTSD. According to his representative's Brief dated April 2021, the Veteran "continues to contend he is warranted service connection for a respiratory disability to include COPD due to the mixture of exposures to asbestos and smoking while on active duty." Thus, the issue on appeal has been recharacterized accordingly. Pursuant to the Board's April 2018 remand directives, the Veteran underwent a VA examination in March 2019. For the following reasons, the Board find the VA examiner's report is inadequate for purposes of determining service connection and is not in substantial compliance with the prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 271. First, the VA examiner relied heavily upon a lack of documented respiratory symptoms during the Veteran's active duty service, the date of his diagnosis "in 2007," and his tobacco use to support the negative nexus opinion. However, silent service treatment records (STRs) and the mere passage of time before a formal diagnosis is rendered, without sufficient rationale, are inadequate bases upon which to render a negative nexus opinion. Next, the VA examiner failed to support her opinion with evidence of record that tobacco use is the "most likely" cause of the Veteran's respiratory disability and, without citing any authority, simply noted that, "[c]igarette smoking is the number one cause of COPD." A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the VA examiner's report does not address when the Veteran's respiratory symptomology first manifested and, instead, only references a 2007 COPD diagnosis and that the Veteran "reports history of COPD." The VA examiner's report also does not address the theory of secondary service connection noted above. An examination or opinion is adequate if it is thorough and contemporaneous, considers the Veteran's prior medical examinations and treatment, and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board's prior remand also directed the RO to undertake "any and all required efforts ... to determine whether the Veteran was exposed to asbestos during service," and that all such efforts "should be documented." Upon review, the Board observes a determination regarding the Veteran's claimed exposure to asbestos is not of record. Likewise, the Supplemental Statement of the Case (SSOC) dated February 2020 is silent as to a determination regarding asbestos exposure. Based upon the foregoing, the Board finds remand is again necessary to afford the Veteran another VA examination and obtain an opinion adequate for determining service connection, that is in substantial compliance with the prior remand directives, and that considers all pertinent lay and medical evidence of record and all theories of entitlement reasonably raised therein. Accordingly, the matter is REMANDED for the following actions: 1. Send the Veteran and his representative an appropriate letter requesting any information he wishes to provide to assist VA in determining whether he was exposed to asbestos during service and allowing appropriate time for response. 2. Thereafter, undertake all necessary efforts to determine whether the Veteran was exposed to asbestos during active duty and enter a formal finding accordingly. All such efforts must be clearly documented in the claims file. 3. After the above development has been completed, schedule the Veteran for a VA examination with a physician who has not previously rendered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's respiratory condition(s) including, but not limited to, COPD and to include as due to asbestos exposure and/or secondary to service-connected PTSD. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology and functional limitations. All pertinent symptomology, including when initially manifested and any progression, must be reported in detail. Any indicated studies must be performed. The examiner is advised that, if the development directed in this remand results in confirmation of the Veteran's exposure to asbestos, the examiner must acknowledge same. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to the following: Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diagnosed respiratory condition(s) is due to, related to, or otherwise etiologically associated with his active duty service including, but not limited to, asbestos exposure. Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diagnosed respiratory condition(s) is proximately due to, related to, or aggravated by a service-connected condition including, but not limited to, PTSD. In offering the above opinion regarding secondary service connection, the examiner must opine as to: (1) whether service-connected PTSD caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products, as a result of PTSD, was a substantial factor in causing COPD; and (3) whether the Veteran's COPD would not have occurred but for the use of tobacco products caused by the Veteran's PTSD. See VAOPGCPREC 6-2003. In offering the above opinions, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) April 2011 private treatment note indicating, "[d]uring a workman's comp evaluation, [the Veteran] was found to have had exposure to asbestos on his job;" (b.) September 2012 statement by the Veteran regarding in-service exposure to asbestos and inhaling "dust and fumes;" (c.) December 2013 statements by the Veteran's sister, Ms. D.J.A., brother, Mr. J.W.A., and Ms. P.J.S., indicating the Veteran was a non-smoker upon entering active duty. A complete and thorough rationale for all opinion(s) expressed, with references to pertinent evidence of record, must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.