Citation Nr: 21042740 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-20 140 DATE: July 13, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1982 to December 1989. The Veteran served as a Non-Commissioned Officer in the Army, including two years of foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal and Army Achievement Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the issue for further development in July 2019 and September 2020. Entitlement to service connection for a respiratory disorder, to include COPD is remanded. Another remand is warranted to obtain a new VA examination from an appropriate VA medical provider and to separately obtain an independent medical opinion from an independent medical expert under 38 U.S.C. § 5109. The Veteran is seeking service connection for a respiratory disorder, to include COPD. He asserted that his COPD is related to his service in the Army. The Veteran testified at his hearing that he was exposed to "Agent GB" while on active duty. He claimed his lung condition began while he was in-service. He recounted a specific situation where he was potentially exposed to chemicals. The Veteran also explained that his role in ammunitions supply was to destroy military ammunitions that contained chemical weapons, nerve agents, GB gas, and mustard gas. Further, the Veteran worked as an ammunition specialist during his time in service. This type of Military Occupational Specialty (MOS) would have exposed him to chemicals and solvents not only in the handling of the ammunition, but also in which to clean and repair weapons as weapons were being used. He was also exposed to the "dust" or residue left from a firearm and ammunition as the weapon(s) had been fired. See March 2019 Hearing Transcript and June 2021 Appellate Brief. Service treatment records show that the Veteran had been diagnosed with bronchitis in February 1987. The Veteran had pulmonary function tests performed in September 1986 and March 1987. The September 1986 pulmonary function test showed that the Veteran had small airway obstruction and smoked 1 package of cigarettes every day. The Veteran's service treatment records contained a written medical opinion for potential exposure to Agent GB from the Johnston Island Dispensary. The physician reported that a medical examination and laboratory testing on the Veteran did not reveal an increased risk of material impairment of the Veteran's health from exposure to Agent GB. There were no special limiting recommendations for exposure to Agent GB upon the use of protective clothing and/or equipment. A November 2012 private treatment record showed that the Veteran had been diagnosed with chronic airway obstruction. In April 2014, a VA medical opinion was obtained for the Veteran's respiratory conditions. The VA examiner opined that it was less likely than not that the Veteran's COPD was incurred in or caused by the claimed in-service injury, event, or illness. Bronchitis was noted in the Veteran's service treatment records. This was most likely due to a viral infection as the Veteran was seen in the emergency room with a fever, body aches, and coughing. Additionally, acute and chronic bronchitis was not a precursor for COPD. COPD was most often due to cigarette smoking and other environmental exposures, such as dust/fumes, etc. The examiner concluded that it was less likely as not that the Veteran's COPD was incurred in or caused by bronchitis that occurred in March 1986. The pulmonary function test results did not show any obstructions. In March 2016, a VA medical opinion was obtained regarding the Veteran's respiratory conditions. The VA examiner opined that it was less likely than not that the Veteran's respiratory condition was incurred in or caused by the claimed in-service injury, event, or illness. The Veteran's claimed COPD was less likely as not the result of the Veteran's service. The Veteran was a pack a day smoker in 1986. It was more likely than not that the Veteran's COPD was related to his smoking than his episodes of bronchitis while in service. Unfortunately, without any further evidence, the claim could not be supported. In December 2019, the Veteran had a VA examination for respiratory conditions. The Veteran was diagnosed with chronic obstructive pulmonary disease with the date listed as 2000. The Veteran stated that he had been diagnosed with COPD. He had shortness of breath with most any exertional activity, but he also had episodes where he could not breath about every 2 months, lasting 30 to 45 seconds. The Veteran required the use of corticosteroids. The VA examiner opined that the Veteran's respiratory condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran's current respiratory condition diagnosis was COPD. The Veteran's service treatment records documented a respiratory diagnosis of resolving bronchitis. There was no medical evidence to show resolving bronchitis as being causative for COPD. These diagnoses were separate and distinct. Therefore, it was less likely than not that the Veteran's COPD was proximately due to, the result of, or permanently aggravated by the Veteran's resolving bronchitis. In January 2021, the Veteran was afforded a VA examination for respiratory conditions. The VA examiner noted that the Veteran's treatment notes indicated obstructive lung disease in the primary medical history. The diagnostic clinical data did not support a diagnosis for lung disease. There was historical reference to a hypoxemic event leading to motor vehicle crash; however, there were no treatment notes for the workup or findings. No new pulmonary function test was requested as the Veteran's last pulmonary function test was in December 2019, and it was normal. Also, VA was not currently performing pulmonary function testing due to the pandemic. The VA examiner opined that the Veteran's respiratory condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. There was no chronic diagnosis was made for COPD. The Veteran's objective examination was normal. The symptoms were subjective only. A nexus had not been established. The Board finds these VA medical opinions to be inadequate. First, the VA medical opinions are inconsistent regarding the Veteran's diagnosis of a respiratory disorder, to include COPD. The January 2021 VA medical opinion concluded that the Veteran did not have a diagnosis of COPD, while the April 2014, March 2016, and December 2019 VA medical opinions concluded that the Veteran did have a diagnosis of COPD. A remand is needed for a new VA examination to clarify this matter. Second, the VA medical opinions did not fully consider the impact of the Veteran's exposure to Agent GB during service to his claimed COPD or other respiratory condition that he has been diagnosed with. Additionally, the Veteran's MOS did not appear to have been taken into account with regards to an impact on a respiratory disease or condition. A remand is needed for an advisory medical opinion from an independent medical expert under 38 U.S.C. § 5109 to address these matters. The matters are REMANDED for the following action: 1. 1. Schedule the Veteran for a VA examination to determine the nature of the Veteran's respiratory disorders, to include COPD. All necessary examinations should be performed, to include a pulmonary function test. A copy of this remand and claims file should be reviewed. The VA examiner should identify any and all respiratory disorders, to include COPD, that the Veteran currently has or was diagnosed with during the period on appeal from February 2014 to present. If the VA examiner finds that the Veteran is not currently diagnosed with a respiratory disorder, the examiner should explain with a sufficient rational the reason for this and discuss the previous VA examination findings and other findings of such a diagnosis. 2. After the above development has been completed, forward the claims file including a copy of the most recent VA examination, for an independent medical opinion from a pulmonologist under 38 U.S.C. § 5109. The independent medical expert is asked to address the following: Is it at least as likely as not that the Veteran's respiratory disorder, to include COPD, is related to his military service, including diagnosis of bronchitis, and exposure to Agent GB, exposure to chemicals and solvents as related to his MOS (not only in the handling of ammunition, but also which were used to clean and repair weapons), and exposure to dust or residue left from firearm and ammunition as the weapon(s) had been fired? See June 2021 Appellate Brief. The independent medical expert should consider the impact that these had on the Veteran's current respiratory disorder. The independent medical expert should consider the pulmonary function tests performed in September 1986 and March 1987. The reviewing pulmonologist is advised that all opinions must be accompanied by a sufficient rationale. Further, the absence of medical evidence cannot be the sole basis for a negative medical opinion. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.