Citation Nr: 22015010 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 11-23 683A DATE: March 21, 2022 REMANDED Entitlement to service connection for respiratory disability, to include bronchitis, is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from October 1967 to August 1973, with service in the Republic of Vietnam. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in May 2015. The Appellant is the Veteran's surviving spouse. In March 2015, the Board denied the Veteran's claim of entitlement to service connection for bronchitis. The Appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a December 2016 Memorandum Decision, the Court vacated the Board's denial of service connection for the above claim and remanded the issue to the Board. The Board remanded the above issue in May 2017 and September 2017. In October 2020, the Board remanded the Appellant's claim to attempt to obtain the Veteran's service records and to provide a fully supported medical opinion. The record contains the October 2021 Final Attempt Letter, documenting VA's attempt to obtain the Veteran's Morning Reports and service records; however, the records cannot be located and therefore are unavailable for review. There has been substantial compliance with the remand instructions, and this matter is again before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for respiratory disability, to include bronchitis, is remanded. Although the Board regrets further delay, another remand is necessary to provide the Appellant with every possible consideration. Further development is necessary prior to appellate review to provide the Appellant with an adequate VA medical opinion adequately addressing the Veteran's medical history. The Appellant contends that the Veteran's respiratory condition, to include bronchitis, had its onset in and was related to the Veteran's active-duty service. In May 2014, the RO provided the Veteran a hearing before a Decision Review Officer. The Veteran testified that he suffered from a constant nagging productive cough during his service in the Republic of Vietnam. The Veteran reported that he continued treatment through a number of VA Medical Centers for his persistent cough after separation from service. The Veteran recalled that VA treating physicians provided diagnoses of bronchitis around 1974 and 1975. In November 2021, the RO provided an addendum medical opinion addressing the Veteran's claimed respiratory condition. The VA clinician stated that the Veteran's report of persistent cough (noted in 1968, 1971 and 1973) less likely as not represented the onset or early manifestation of any diagnosed respiratory disorder post service. The VA examiner noted the Veteran's documented in-service upper respiratory infections and reported the Veteran's December 1988 diagnosis of acute influenza with probable secondary bronchitis. The VA examiner noted these documented respiratory conditions were acute and transitory that resolved with treatment. VA's duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. When VA determines to provide a medical opinion, it must ensure that the opinion accurately addresses competent material evidence favorable to the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting a medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value). The Board notes the record contains the Veteran's July 1994 VA medical certificate that indicated the Veteran's symptomatic cough and provided a diagnosis of chronic bronchial disease. Additionally, the Veteran submitted private treatment records from June 1998, which shows the Veteran was hospitalized due to worsening cough and shortness of breath. The Veteran's private treating physician provided the diagnosis of chronic bronchitis. As the November 2021 VA examiner opined the medical evidence of record indicated the Veteran's respiratory conditions were acute and transitory, remand is required to provide a clarifying opinion addressing the Veteran's lay evidence of continued treatment within a year following the Veteran's May 1973 in-service treatment of bronchitis, and the July 1994 VA treatment record and the June 1998 private hospital record which noted diagnoses of chronic bronchial disease and chronic bronchitis, respectively. Accordingly, the Appellant's claim is remanded for further development. The matters are REMANDED for the following action: 1. Obtain a clarifying addendum opinion from the examiner who provided the November 2021 VA opinion, or, if not available, another appropriately qualified VA medical professional. Following a review of the evidence of record, to include the Veteran's lay testimony, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's respiratory disability, to include bronchitis, had its onset during or is otherwise etiologically related to active-duty service. For the purposes of this examination, the VA clinician must address the Veteran's May 2014 hearing testimony noting continued treatment for bronchitis following service; and the July 1994 VA treatment record and June 1998 private treatment record, noting diagnoses of chronic respiratory illnesses. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran was competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.