Citation Nr: 21040947 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-57 145 DATE: July 7, 2021 REMANDED Entitlement to service connection for a respiratory condition is remanded. Entitlement to service connection for a skin condition is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to August 1970. This case comes before the Board on appeal from rating decisions of October 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board briefly clarifies the scope of the Veterans' remaining claims, which were previously remanded for further development in November 2018. At that time, the Board also remanded the issues of service connection for arthritis and a spine condition. See November 2018 Board Decision at 4. However, the record reflects that these issues were subsequently granted by the RO. See August 2020 Rating Decision. Accordingly, these claims are no longer before the Board at this time. 1. Entitlement to service connection for a respiratory condition is remanded. The Veteran asserts that he has a respiratory condition as a result of exposure to asbestos. See September 2013 VA Form 21-4138. An August 2013 VA examiner previously opined that the Veteran's respiratory condition "is more related to small airway severe obstruction as in COPD/emphysema and not like the average asbestos exposure disease." See August 2013 VA Examination Report at 23; see also id. at 11 (diagnosing emphysema and chronic obstructive pulmonary disease, but not asbestosis); see also August 2013 Medical Scan Results at 1 (providing scan results and interpreter's assessment of "[chronic] bronchopulmonary disease, probably smoker's lung"). The Board previously found that this examination was inadequate to fully sustain adjudication of this claim because it did not discuss the Veteran's treatment for cough and congestion during service, nor did it adequately discuss his assertions of continuous symptomatology following his active-duty service. See November 2018 Board Decision at 5. Accordingly, the Board remanded this issue for an additional examination. See id. at 6. Pursuant to the November 2018 Board Remand, the Veteran was provided a VA examination in September 2019. The September 2019 examiner corroborated the previous examiner's diagnosis of COPD. See September 2019 VA Examination Report (Respiratory) at 2. While this examiner discussed the Veteran's assertions of continuous symptomatology and in-service treatment for a cold, her opinion is also inadequate to support adjudication because it appears to rely exclusively on the absence of specific treatment for COPD or asbestos exposure in the Veteran's service treatment records. In full, the September 2019 VA examiner's analysis is as follows: [The] Veteran's diagnosis of COPD is not service related. STR does not show or mention [the Veteran's] exposure to asbestos, and does not show [he] was treated for condition[s] or symptom[s] of COPD during service. Therefore, his respiratory condition, COPD is less likely than not related or caused by exposure to asbestos, illness or illness during service. A nexus has not been established. See id. at 13; see also id. at 3 (addressing medical history and treatment). "[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight... if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). "Relevant points that can be discussed in an examination report include, but are not limited to, why the examiner finds cited studies persuasive or unpersuasive, whether the veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested itself in an unusual way." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (emphasis added). The Board notes the Veteran's history of smoking and finds it plausible that such history may be relevant to the etiology of his respiratory condition. See September 2019 VA Examination Report (Respiratory) at 3 (noting that the Veteran smoked "[until] 3-4 months ago"); see also July 2013 Medical Treatment Records at 11 (providing March 2013 treatment note observing "heavy smoking history"). However, as the Board is not qualified to make its own medical determinations and must rely on independent and qualified medical expertise, the medical relevance of the Veteran's history of smoking must be determined by a qualified examiner. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board notes that the Veteran's assertions regarding the onset of his respiratory symptoms are somewhat inconsistent. See September 2019 VA Examination Report (Respiratory) at 3 (asserting "continuous cough w/mucous production" following separation from service); cf. August 2013 VA Examination Report at 12 (asserting that such symptoms had begun "[by] the 1980s"). As discussed by the September 2019 VA examiner, the Veteran's STR reflect symptoms of coughing and congestion but do not reflect any respiratory conditions at the time of his separation from service. See September 2013 STR at 3-4. The Board may not generally consider the absence of evidence as substantive negative evidence when adjudicating a claim. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Because the September 2019 VA examiner's opinion appears to rely exclusively on the absence of treatment for COPD in the Veteran's STR and does not discuss the relevance of his history of smoking, it is not adequate to substantially fulfill the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 2. Entitlement to service connection for a skin condition is remanded. The Board likewise remanded the issue of entitlement to service connection for a skin condition for a VA examination. See November 2018 Board Decision at 6-7 (noting in-service treatment for facial sores and subsequent cellulitis and rash); see also September 2013 STR at 40. As such, the Veteran was afforded a VA examination as to the claimed skin disability in September 2019. The September 2019 VA examiner opined that the Veteran does not have a diagnosable skin condition: There is no evidence showing [complaints of] or treatment of any skin condition in the STR. Medical treatment record fails to show this exist[s] or developed during service years. Nexus has not been established. No Diagnosis of current skin condition confirmed. [Normal] objective exams today. No dry skin noted. [The Veteran] denies going to clinic for condition during service. See September 2019 VA Examination Report (Skin) at 15-16 (capitalization in original); see also id. at 3 (noting the Veteran's assertions of dry skin of the extremities). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Whether the Veteran has a current skin condition, or has had such a condition during the rating period on appeal, is therefore dispositive of further analysis. The examiner's report indicates that she reviewed the Veteran's claims file. See September 2019 VA Examination Report (Skin) at 1. However, her opinion is inconsistent with the Veteran's STR, which reflect treatment for facial sores as noted above. See September 2013 STR at 40; see also September 2019 Medical Treatment Records at 361 (providing March 2010 treatment note observing "cellulitis and abscess of other specified sites" in prior medical history). It is therefore unclear to the Board if the September 2019 VA examiner actually reviewed the evidence of record in forming her opinion or relied solely on the Veteran's assertions, and an opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). These matters are therefore REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriately-qualified examiner. The examiner shall review the claims file, including this remand, and provide an opinion as to whether it is at least as likely as not that the Veteran's has any respiratory condition which was at least as likely as not incurred in or a result of his active-duty service, to include as a result of exposure to asbestos. The examiner shall specifically address the relevance, if any, of the Veteran's history of smoking. If the examiner concludes that the Veteran's history of smoking is more likely than not the cause of any respiratory conditions, the examiner shall clearly explain the medical evidence and reasoning supporting such a conclusion. If the examiner is unable to provide such an opinion without personally examining the Veteran, schedule the Veteran for such an examination. 2. Schedule the Veteran for an examination before an appropriately-qualified examiner. The examiner shall review the claims file, including a copy of this remand, and provide an opinion as to whether it is at least as likely as not that the Veteran has any skin conditions which were incurred in or a result of his active-duty service, or has had any such conditions during the rating period on appeal. If the examiner concludes that the Veteran periodically experiences symptoms such as dry skin, but that these symptoms are not indicative of a diagnosable condition for VA compensation purposes, the examiner shall clearly explain the medical evidence and reasoning supporting such a conclusion. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.