Citation Nr: 22008751 Decision Date: 02/15/22 Archive Date: 02/15/22 DOCKET NO. 17-02 946 DATE: February 15, 2022 REMANDED Entitlement to service connection for respiratory disability (including pulmonary fibrosis), to include as due to conceded asbestos and herbicide agent 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). This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020 and July 2021, the Board remanded this matter for further development. For the reasons noted below, the Board finds that another remand is warranted. Entitlement to service connection for respiratory disability (including pulmonary fibrosis), to include as due to conceded asbestos and herbicide agent exposure, is remanded. In July 2021, the Board remanded this matter to the RO to obtain pertinent medical records and to afford the Veteran a VA examination to determine the nature and etiology of his claimed respiratory disability, to include an opinion as to whether he has a diagnosis of pulmonary fibrosis as reflected in his private treatment records. Thereafter, the Veteran underwent a VA respiratory conditions examination in October 2021. The examiner provided a diagnosis of pulmonary fibrosis, unresolved. The examiner opined that the condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized, after reviewing the records, including records from Dr. Hawkins, Pulmonary Associates, the July 2021 Board remand, and the Veteran's history, that idiopathic pulmonary fibrosis (IPF) is a progressive lung disease of unknown etiology. The examiner then noted that while the cause of IPF is unknown, the risk factors include smoking, gastroesophageal reflux disease (GERD), environmental exposures, occupational exposures, diabetes mellitus, infectious agents, and genetics. The examiner found that based on a February 2011 CT result indicating no features of asbestos or pleural disease, she was unable to state asbestos is the cause for the pulmonary fibrosis and further indicated that research supports an unknown etiology for pulmonary fibrosis with multiple risk factors, as previously listed. Here, the Board finds the October 2021 VA opinion to be inadequate. Specifically, while the Veteran's exposure to asbestos and herbicide agents (including Agent Orange) has been conceded, the October 2021 VA examiner listed risk factors of the disability of environmental exposures and relied on the February 2011 finding of no features of asbestos, but did not opine as to whether the disability was caused by exposure to herbicide agents. Additionally, while relying on the February 2011 finding of no features of asbestos, the examiner did not explain why she was unable to state that asbestos was not the cause for the pulmonary fibrosis, considering that the Veteran also underwent a chest x-ray in October 2021, nearly eleven years after the February 2011 chest x-ray. Thus, the Board finds the opinion to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examination is adequate if it is thorough and contemporaneous, considers the Veteran's prior medical examinations and treatment, and describes the disability in sufficient detail so that the Board's evaluation is a fully informed one. Id. As such, a remand is required to obtain an adequate opinion. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Dublin Vista electronic records system and are dated to March 2021. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, the Veteran should be given another opportunity to submit the appropriate authorization to allow VA to obtain his relevant treatment records from Central Georgia Pulmonary Associates. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for respiratory disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for respiratory disability from Central Georgia Pulmonary Associates and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the Dublin Vista electronic records system for the period since March 2021; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, forward the claims file to an appropriate clinician to obtain an addendum opinion as to the nature of the Veteran's current respiratory disability and whether it is related to service. The entire claims file, to include a copy of this REMAND, must be viewed by the clinician. If upon review of the record, the clinician determines that a new examination is necessary, schedule the Veteran for an appropriate examination to determine the nature and possible relationship to service of the Veteran's current respiratory disability. The clinician is asked to address the following: a) Provide a clarification as to any type of pulmonary fibrosis experienced by the Veteran since approximately May 2011, to include whether idiopathic pulmonary fibrosis. b) Is there an approximately 50 percent chance that any respiratory disability experienced by the Veteran since approximately May 2011 (1) began during active service; OR (2) is otherwise caused by his military service, to include as a result of his conceded exposure to asbestos and herbicide agents (including Agent Orange)? Why or why not? If not related to service, the clinician is asked to indicate the specific risk factors leading to the Veteran's respiratory disability and state why these are the likely causative risk factors. A complete rationale for all opinions is required. In this regard, the fact that a particular respiratory disability is not on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. The factors affecting a direct service connection analysis when a disability is not on the list of diseases presumed to be associated with Agent Orange exposure include whether there are persuasive studies, whether there are risk factors personal to the Veteran that might be the cause of his claimed respiratory disability, and whether the disability has manifested itself in an unusual manner. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.