Citation Nr: 21031094 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 11-25 983 DATE: May 20, 2021 REMANDED The claim of entitlement to service connection for a respiratory disability, to include atelectasis of the left lung and bronchitis, is remanded. REASONS FOR REMAND The Veteran had active service from June 1972 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in July 2016. A transcript is of record. The instant issue was remanded in December 2016, December 2019, and October 2020. In March 2021, the Veteran was advised by the Board that the Veterans Law Judge (VLJ) who conducted the July 2016 hearing was no longer employed by the Board. He was instructed to respond within 30 days of the Board's letter if he wished to have another hearing before a VLJ. He responded in April 2021 that he did not want an additional hearing. The Veteran seeks service connection for a respiratory disability, to include atelectasis of the left lung and bronchitis. He asserts that he has respiratory residuals from coronary artery bypass graft surgery in November 2001, and that service connection is warranted as secondary to his coronary artery disease (CAD). The medical record reflects that following the November 2001 surgery, the Veteran was seen by urgent care in December 2001 and found to have atelectasis of the left lower lobe that did not require thoracentesis. A January 2002 chest X-ray was noted to be unchanged from December 2001. A December 2003 chest X-ray indicates that there were linear opacities that persisted at the left base, consistent with subsegmental atelectasis or fibrosis. In November 2008, the Veteran's cardiologist, D.R.T., M.D., indicated that pulmonary function tests revealed 67 percent lung capacity with atelectasis of the left lung. In December 2016, the Board remanded the issue for an examination to determine the nature and etiology of any lung disability, to include atelectasis. On VA examination in March 2017, the diagnoses was chronic bronchitis and atelectasis residual from cardiac surgery, resolved. The examiner also noted that bronchiectasis with a near constant productive cough was present. He concluded that atelectasis was a residual of cardiac surgery in 2001, but that it had since resolved. He did not provide an opinion regarding the etiology of bronchitis. In December 2019, the Board concluded that the March 2017 opinion was inadequate to the extent that the examiner did not provide an opinion regarding the etiology of bronchitis, and remanded the matter. On VA examination in January 2020, the diagnoses were chronic bronchitis and lung atelectasis. The Veteran reported an incident of bronchitis during service, treated with antibiotics and resolving in four to five days. The examiner stated that the atelectasis of the left lung had been determined to be a result of the Veteran's coronary artery bypass surgery. He opined that the surgery had nothing to do with the bronchitis episodes that the Veteran had while on active duty. He further opined that the Veteran's current diagnosis of a respiratory disability, to include atelectasis of the left lung secondary to coronary artery disease, was less likely than not incurred or caused by the Veteran's bronchitis during service. As to the etiology of the Veteran's bronchitis, the examiner stated that his respiratory disability, to include bronchitis, was less likely than not incurred or caused by the bronchitis episode during service. He reasoned that the Veteran's current case of bronchitis is that of chronic bronchitis. He determined that there was no causal relationship between it and the Veteran's service-connected CAD, including the treatment for his heart condition. He instead concluded that the Veteran's chronic bronchitis was most likely due to his long-term cigarette use. In October 2020, the Board determined that the January 2020 VA examiner did not answer the questions posed in the December 2019 remand directives. It pointed out that the remand directed that an opinion be obtained as to whether the Veteran's bronchitis was the result of his CAD, to include treatment for his CAD and/or the surgery he had in 2001. It noted that this question was not answered by the January 2020 examiner; rather, he provided an opinion as to whether the bronchitis was related to reported bronchitis in service. The Board additionally noted that the evidence did not clearly delineate whether the Veteran's atelectasis had resolved as indicated by the March 2017 VA examiner, and if so, when it resolved. The Board directed that a new opinion be obtained, addressing whether the Veteran currently has atelectasis of the left lung, or in the alternative, an opinion as to when it resolved. Specifically, the Board's October 2020 remand directives instructed that an examiner opine as to whether bronchitis was caused or aggravated by the Veteran's service-connected CAD (to include its treatment). The Board additionally directed that the examiner should opine as to whether left lung atelectasis had resolved, and if so, approximately when. In November 2020, a VA examiner concluded that the Veteran did not have, and had never been diagnosed with a respiratory condition. A history was not elicited or recited. This examiner indicated that there was no evidence of a respiratory condition, to include atelectasis or chronic bronchitis, and that the requested opinions were moot. He noted that the Veteran did not have a chronic cough. Regarding whether bronchitis was related to CAD, the examiner indicated that CAD did not cause or aggravate such, and that there was neither a consensus or evidence in the literature nor in the medical community supporting a causal or aggravating relationship between the conditions. To the extent that this examiner indicated that the Veteran did not have a chronic cough, this statement is in conflict with the 2017 VA examiner's finding of bronchiectasis with a near constant productive cough. Moreover, the examiner did not provide sufficient rationale regarding his conclusion that bronchitis was neither caused nor aggravated by CAD, stating only that such was not supported by literature or the medical community. A detailed rationale, including a discussion of the medical principles underlying any conclusion, is necessary to allow the Board to make a determination as to this question as it pertains to the Veteran. Regarding atelectasis, the examiner indicated that while X-ray in 2003 revealed subsegmental atelectasis versus scarring of the left lung base, X-ray in 2006 was negative. Thus, he concluded that it had resolved during that interim period. This does not adequately consider the subsequent 2008 report by Dr. T. indicating atelectasis and reduced lung capacity. Thus, an additional opinion must be obtained regarding the question of whether atelectasis has resolved, and if so, approximately when. Finally, the Board observes that in September 2020 and March 2021 informal hearing presentations, the Veteran's representative raised new theories of entitlement. First, in the September 2020 brief, the Veteran's representative argued that the Veteran's respiratory symptoms might have been caused or aggravated by his service-connected gastroesophageal reflux disease (GERD). An opinion regarding this question should be obtained. Second, in the March 2021 brief, the Veteran's representative he noted that the Veteran served during the Gulf War era, and suggested that he might have a respiratory disorder related to any deployment to southwest Asia. The Board notes that the Veteran's service personnel records are not associated with the claims file, and that the record is not otherwise clear as to whether the Veteran was present in the southwest Asia theater of operations, and is thus entitled to consideration pursuant to 38 C.F.R. § 3.317. The Veteran's service personnel records should be obtained, and if service in southwest Asia is verified, the examination conducted on remand should include an opinion as to whether the Veteran has a respiratory disorder that is related to any exposure during that service. The matters are REMANDED for the following action: 1. Obtain the Veteran's service personnel records, and make a determination as to whether he had service in southwest Asia during the Gulf War era. 2. Following completion of the above development, schedule the Veteran for an examination with an examiner who has not previously examined him to determine the nature and etiology of any respiratory disability. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Following review of the record and examination of the Veteran, the examiner should identify all findings referable to the Veteran's respiratory system. The examiner should specify whether there are findings consistent with atelectasis, to include whether such has resolved. If the examiner concludes that atelectasis has resolved, he or she should consider the record and provide an opinion regarding approximately when this condition resolved. Regarding any diagnosed respiratory disability, to include atelectasis and bronchitis, the examiner should: (a) provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that any such disability was caused or aggravated by the Veteran's service-connected CAD, to include its treatment, particularly coronary artery bypass graft in 2001. (b) provide an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any such disability was caused or aggravated by the Veteran's service-connected GERD. (c) provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that any such disability is the result of an event, injury, or disease in service. In rendering these opinions, the examiner is advised that the Veteran and his wife are competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the lay reports by the Veteran and his wife, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the lay statements of record or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If service in Southwest Asia is established, the examiner should also be asked to address whether any of the Veteran's respiratory symptomatology can be attributed to a known clinical diagnosis. If his respiratory symptoms are attributable to a diagnosed illness, the examiner should provide an opinion regarding whether the etiology or pathophysiology of the condition is not understood AT ALL as to this particular Veteran. If BOTH the etiology AND pathophysiology of the respiratory condition is understood AT ALL as to the Veteran, the examiner should indicate whether it is at least as likely as not that the condition is attributable to service. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page) 4. Then, readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.