Citation Nr: 21042019 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 17-02 946 DATE: July 11, 2021 REMANDED Entitlement to service connection for a respiratory condition, to include pulmonary fibrosis, to include as due to conceded asbestos and herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1963 to September 1967, to include in the Republic of Vietnam (RVN). The Board notes that asbestos and herbicide exposure has previously been conceded by the Agency of Original Jurisdiction (AOJ). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in January 2020. Entitlement to service connection for a respiratory condition, to include pulmonary fibrosis, to include as due to conceded asbestos and herbicide exposure, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the January 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in January 2020, the Board instructed the AOJ to provide the Veteran with a VA examination regarding the nature and etiology of his claimed respiratory condition, to include pulmonary fibrosis. As part of this examination, the examiner was instructed to address private treatment records that show a diagnosis of pulmonary fibrosis and other lung abnormalities and, if any previously diagnosed condition was not found currently, the examiner was instructed to address whether the previous diagnosis was in error or had resolved. The Veteran was afforded a VA examination and an etiological opinion was provided in February 2020. Additionally, a VA medical opinion from a different examiner was obtained in October 2020. However, while both the February 2020 and October 2020 opinions noted that the Veteran did not have a diagnosis of pulmonary fibrosis, neither addressed whether the prior diagnosis was in error or had resolved. See February 2020 VA Respiratory Conditions Disability Benefits Questionnaire (DBQ); October 2020 VA Medical Opinion DBQ. Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is warranted to allow the AOJ to afford the Veteran with an examination that substantially complies with the Board's directives. See Stegall v. West, supra. Even if the Board could find substantial compliance with the January 2020 remand directives, a remand would be warranted nonetheless to allow the AOJ to conduct additional development. Specifically, a remand is necessary as the evidence indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran received treatment at Central Georgia Pulmonary Associates. However, only excerpts of records relating to such treatment have been associated with the claims file, and no records relating to such treatment have been associated with the claims file since March 2017. See Central Georgia Pulmonary Associates records, received March 2017. As such, a remand is necessary to allow the AOJ to obtain pertinent private medical records. See 38 U.S.C. § 5103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the Veteran's electronic claims any outstanding pertinent medical records, to include records relating to treatment at Central Georgia Pulmonary Associates, as well as records relating to treatment at Dublin VA Medical Center (VAMC) from August 2018 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician, preferably one specializing in pulmonology, regarding the nature and etiology of his claimed respiratory condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed respiratory condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include conceded asbestos and herbicide exposure. (c.) IF THE EXAMINER DETERMINES THAT THE VETERAN DOES NOT HAVE A DIAGNOSIS OF PULMONARY FIBROSIS, ADDRESS WHETHER THE PRIVATE DIAGNOSIS WAS IN ERROR OR THE CONDITION HAS RESOLVED. IF THE DIAGNOSIS HAS RESOLVED, AN ETIOLOGICAL OPINION UNDER SUBSECTION (B) MUST BE PROVIDED. (d.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's lay history; and ii. The Veteran's private records indicating a diagnosis of pulmonary fibrosis. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service documentation of a condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.