Citation Nr: 21031522 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-14 018A DATE: May 24, 2021 REMANDED Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disorder (COPD), is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected left elbow disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to May 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2018 and October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge. A copy of the hearing transcript is of the record. 1. Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disorder (COPD) The Veteran asserts that he is entitled to service connection for respiratory disabilities because they are the result of active service. More specifically, the Veteran asserts that he served in an area in Iraq that was used to process chemicals. The Veteran stated that the area was cloudy with dust and that he has experienced a chronic cough, shortness of breath, and restricted breathing since that time. At a September 2005 VA examination, the Veteran reported that respiratory symptoms began while in service. The Veteran stated that he used to smoke, but that he quit in 1987. He stated that while in Iraq he served in a building that had nuclear, biological, and chemical materials without a gas mask. The examiner opined that the Veteran had mild obstructive lung disease as a result of past smoking history, and calcified granuloma of right mid lung that was asymptomatic. The examiner stated that "...there is no specific evidence to relate his obstructive lung disease to any chemicals that he may have been exposed to in Iraq without resorting to speculation." In a September 2018 VA examination, the Veteran reported shortness of breath. The examiner only noted shortness of breath as a disability. The examiner opined that the Veteran's shortness of breath was a symptom of an undiagnosed illness. A June 2019 Gulf War examination found chronic disability patterns that were diagnosable, but also had medically unexplained chronic multi-symptom illness of unknown etiology with fatigue, throat irritation symptoms, chest pain, and shortness of breath, without diagnostic findings to warrant a clear etiology. At an August 2019 hearing before the Board, the Veteran testified about experiencing shortness of breath and a cough since exposure to dust storms, burning feces, and jet fuel in service without a mask. The Veteran also testified that he had stopped smoking for about 14 years by the time he was 40 years old. The service medical records do not indicate any respiratory disability at entrance to service. The Board notes that throughout the duration of the appeal, the Veteran has asserted that the medical examiner's findings that linked COPD to smoking history are unsubstantiated or, lack clear and unmistakable evidence that the claimed condition pre-existed service. In light of that, the Board finds that opinion of record is incomplete, and an additional medical opinion is necessary to determine whether there is clear and unmistakable evidence that a respiratory disability occurred prior to service and was aggravated during service. 2. Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected left elbow disability is remanded. The Veteran contends that a left shoulder disability is secondary to a service-connected left elbow disability. In January 2020 the Board remanded the claim for a VA medical opinion on direct and secondary service connection. The September 2020 VA examiner indicated that there was no diagnosis at the time of examination, and as a result, no opinion was necessary. In a February 2021 statement the Veteran asserted that his arm was in too much pain to actively participate in the September 2020 VA examination. Because of the evidence of prior diagnosis on VA examinations, and the contention that the Veteran was in too much pain to participate in the VA examination, additional examination is necessary to ascertain the etiology of the claimed disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a medical doctor who has not previously examined the Veteran in conjunction with this claim to obtain an etiology opinion for any respiratory disability. The examiner must review the claims file and note that review in the report. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should discuss the Veteran's lay statements regarding the history and continuity of symptomatology. (a.) The examiner should opine whether there is clear and unmistakable evidence a respiratory disability preexisted the Veteran's entrance to service. The examiner should reference the evidence that supports that opinion. If a respiratory clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable evidence that the respiratory disability was not aggravated during service. The examiner should reference the evidence that supports that opinion. (b.) The examiner should state whether any preexisting respiratory disability permanently increased in severity during service and if so, whether any permanent increase in severity represented, or was more than, the natural progress of the disorder. (c.) If a respiratory disability did not clearly and unmistakably preexist service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any respiratory disability, to include COPD, is related to active service, or complaints and treatment during service. (d.) If the examiner determines that any respiratory disability is not the result of active service, and another etiology can be determined, the examiner should provide an opinion as to what likely caused the disability, taking into account the Veteran's full post-service work and medical history. The examiner should provide a complete rationale for any opinions offered. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of a left shoulder disability. If the examiner determines there are no disabilities on examination, the examiner should opine as to whether the listed disabilities in the September 2018 VA examination have since resolved and should opine whether those disabilities are at least as likely as not related to service or caused or aggravated by a service-connected left elbow disability. The examiner should state whether there are any recurrent disabilities if none are found on examination. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. Any opinion expressed should be accompanied by a complete rationale. The examiner should address the following: (a.) The examiner should identify any pertinent pathology found and should diagnose all left shoulder disabilities found. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified any left shoulder disability, or any left shoulder disability present during the pendency of this claim, had its onset in service, was aggravated by service, or is otherwise related to any incident of service, to include the incident when the Veteran injured the left elbow, or that arthritis manifested within one year following separation from service. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any left shoulder disability is proximately due to or the result of service-connected disabilities, to specifically include a service-connected left elbow disability. (d.) Opine whether it is at least as likely as not (50 percent probability or greater) that any left shoulder disability has been aggravated (increased in severity beyond the natural progress of the disorder) by service-connected disabilities, to specifically include a service-connected left elbow disability? Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.