Citation Nr: 22011887 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-22 401 DATE: March 2, 2022 REMANDED Entitlement to service connection for emphysema (claimed as breathing problems due to exposure to fumes) is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Army from January 1968 to December 1969. This matter comes before the Board of Veterans' Appeals from an appeal of a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter came before the Board in January 2019 and August 2021, both times being remanded for medical opinions. The Board finds substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (Vet. App. 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (Vet. App. 2008); Dyment v. West, 13 Vet. App. 141, 146-47 (Vet. App. 1999) (holding that substantial, rather than strict, compliance with remand directives is required). Unfortunately, another remand is necessary in order to obtain relevant records and an addendum opinion. Entitlement to service connection for emphysema (claimed as breathing problems due to exposure to fumes) is remanded. The Veteran asserts his emphysema is a result of exposure to fuel and exhaust fumes during service as a tank and turret maintenance man. See September 2013 claim. The Veteran has a current diagnosis of emphysema. See, e.g., December 2013 medical treatment note. Unfortunately, a remand is necessary in order to obtain relevant records. The Veteran's VA treatment records document that he has been seeing a private physician for years. See, e.g., October 2011 primary care note. Despite being the Veteran's primary physician, the records from this physician are not associated with the claims file. Additionally, the Veteran filled out an authorization and consent to release information for another treating physician, and those records were never obtained by VA. See December 2011 release. The Veteran is also receiving Social Security Administration (SSA) payments, and any records related to these payments are not associated with the file. See March 2015 claim; November 2012 SSA paperwork. On remand, VA should obtain these records, if they exist. Another remand is also necessary in order to obtain an addendum opinion. The Veteran was afforded a VA opinion in September 2019 and August 2021. The September 2019 VA opinion concluded that the Veteran was not diagnosed with emphysema during active service, and that his history of smoking was more likely the cause. See September 2019 VA opinion. The August 2021 opinion provided a negative nexus opinion, highlighting the medical literature supporting the link between smoking and emphysema. See August 2021 VA opinion. This examination also discussed the relevance of the Veteran's occupational history as a coal miner and opined that the Veteran's exposure to fume fuels was not the cause of his emphysema. See id. However, aside from stressing the link between smoking and emphysema, the examiner did not provide a rationale as to why the Veteran's exposure to fumes could not be a contributing factor. See id. Moreover, this examination noted that the Veteran's entrance examination stated he experienced "shortness of breath." See id.; January 1967 pre-induction examination. The 2021 examination does not discuss any potential relevance or possible link to the Veteran's current emphysema, which may have resulted in his service aggravating this condition. Additionally, while the 2021 examination discusses the medical literature documenting a relationship between smoking and chronic obstructive pulmonary disease (COPD), the Veteran has also provided references to medical literature documenting the link between exposure to pollutants, fumes, and dust. See February 2022 informal hearing presentation (IHP). An addendum opinion is required to address these deficiencies. Finally, the opinions of record determined it was "less likely than not" that the Veteran's emphysema is connected to service. The language of the previous remand entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance i.e. nearly equal and does not require the evidence to be in exact equipoise. The matters are REMANDED for the following action: 1. The Decision Review Operations Center (DROC) should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The DROC should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. The DROC should obtain any available records from SSA. The DROC should ask the Veteran to complete a VA Form 21-4142 for "Dr. T." See, e.g., October 2011 primary care note. The DROC should also ask the Veteran to complete a current VA Form 21-4142 for "Dr. L." See, e.g., December 2011 release. The DROC should make two requests for the authorized records from Drs. T. and L., unless it is clear after the first request that a second request would be futile. The DROC should also obtain any federal records from the Social Security Administration pertaining to the Veteran. See, e.g., March 2015 claim; November 2012 SSA paperwork. The DROC should document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion, to include a new examination if necessary, from an appropriate clinician regarding whether the Veteran's emphysema is at least as likely as not (an approximate balance of positive and negative evidence) related to the Veteran's exposure to fuel and exhaust fumes during service. 3. The examiner is specifically requested to discuss the Veteran's military occupational specialty of tank and turret maintenance man and associating smoke and fume exposure relative to his currently diagnosed emphysema condition, namely whether a medical nexus exists between the two. 4. The examiner is also specifically requested to discuss the notation of "shortness of breath" on the Veteran's pre-induction paperwork, and any relation or possible link to the Veteran's emphysema. See January 1967 pre-induction examination. 5. The examiner is also specifically requested to discuss the references and citations to medical literature detailing the link between emphysema and causes other than smoking detailed in the Veteran's IHP. See February 2022 IHP. 6. If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.