Citation Nr: 22014705 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-45 218 DATE: March 14, 2022 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran had active service from October 1959 to October 1962. The Veteran died in November 2015 and his surviving spouse has been substituted for the Veteran for the purpose of processing the claim to completion. See July 2017 substitution letter. Prior to his death, the Veteran appealed a July 2015 rating decision by the Agency of Original Jurisdiction (AOJ), which in pertinent part denied service connection for COPD. The appeal was remanded by the Board for additional development in March 2019 and September 2021. Before his death, the Veteran asserted that his COPD was due to asbestos exposure during service. See August 2015 statement. There is no specific statutory guidance regarding asbestos-related claims, nor has the Secretary promulgated any regulations regarding such claims. Instead, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). A Veteran's probability of asbestos exposure can be classified by his or her military occupational specialty (MOS). An MOS is classified as minimal, probable, or highly probable asbestos exposure and should be conceded for the purposes of scheduling an examination. The March 2019 and September 2021 remands did not concede asbestos exposure and thus placed the burden of determining exposure on a clinician. Review of the record indicates that the Veteran was stationed aboard U.S.S. Wren (DD 568) from June 1961 to October 1962. He reported being required to paint over equipment or piping that was covered with asbestos insulation, and the Veteran's service treatment records (STRs) appear to corroborate the Veteran's reports of painting in this regard. See October 1961 STR, noting Veteran's treatment for getting paint in his eye. For these reasons, the Board finds that the Veteran was as likely as not exposed to asbestos while in service. The medical opinions of record are incomplete. As the Board's September 2021 remand observed, the October 2019 opinion was based on an incomplete record. Moreover, the October 2019 clinician stated there was no evidence the Veteran had respiratory impairment in the military, despite STRs noting treatment for cough and cold symptoms in September 1960, February 1961, February 1962, and March 1962. Thus, the October 2019 opinion is based in part on an inaccurate factual premise. Additionally, the November 2021 opinion was based on a finding that asbestos exposure was not conceded. Further, the September 2021 remand directed the reviewing clinician to address the February 2016 report from Dr. C.J. and the August 2016 report from Dr. R.G. Although the November 2021 clinician noted those documents were reviewed, the clinician did not address them in any meaningful way and thus did not comply with the remand instruction. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges the 2016 report from Dr. R.G. regarding the Veteran's asbestos exposure and its relationship to the Veteran's COPD. However, Dr. R.G.'s report conflated the Veteran's in-service and post-service asbestos exposure, the latter of which involved working as a shipyard worker, welder, and laborer for approximately 40 years. Moreover, the report did not address the Veteran's history of smoking, which the October 2019 and November 2021 opinions concluded was likely the primary cause of the Veteran's COPD. Given these facts, remand for a new opinion is required. This matter is REMANDED for the following actions: 1. Obtain an opinion from an appropriately qualified clinician, who has not previously reviewed the claims file, to determine the nature and etiology of the Veteran's COPD. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. After the record review, the clinician should opine whether it is at least as likely as not that the Veteran's COPD was incurred in, or is otherwise related to, his time on active service, to include his conceded exposure to asbestos therein and in-service respiratory ailments? The reviewing clinician should discuss Dr. C.J.'s February 2016 report, and Dr. R.G.'s August 2016 report concluding that asbestos exposure was the causative factor in the development of the Veteran's lung disease. The clinician should also discuss the Veteran's reported history of smoking. In rendering this opinion, the reviewing clinician is advised that the Veteran was competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After the above has been completed, readjudicate the claim. If the benefit sought remains denied, provide the appellant and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.