Citation Nr: 22015807 Decision Date: 03/19/22 Archive Date: 03/19/22 DOCKET NO. 19-11 172 DATE: March 19, 2022 REMANDED Entitlement to service connection for a respiratory disability, to include persistent cough, emphysema, COPD, and pulmonary adenocarcinoma is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1979 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in February 2021; a transcript is of record. The Board acknowledges receipt of a November 2018 medical opinion concluding that the Veteran's respiratory disability was less likely than not etiologically linked to her military service, including her reported asbestos exposure while serving aboard the U.S.S. Point Loma. The examiner reasoned that there was no medical documentation cited to support a diagnosis of asbestosis or mesothelioma and that there was no direct correlation between the Veteran's lung condition and her service. However, this opinion is inadequate because the examiner does not explain why there is no such correlation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Also, an examiner cannot rely on lack of documentation to formulate an opinion. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). The Board also notes that the Veteran submitted an opinion by a private medical provider finding that her condition was the result of her in-service asbestos exposure. The provider producing this opinion cites to an article from January 2017 and reasons that the Veteran "falls in" the category of those studied in said article. However, the examiner does not explain why he concludes this. Nieves-Rodriguez, 22 Vet. App. at 301. Further, the private examiner acknowledged that the Veteran has a significant history of smoking. Disabilities that are proximately due to or the result of an injury or disease as attributable to use of tobacco products during service are not eligible for service connection. 38 C.F.R. § 3.300(c). Also, the Veteran was diagnosed with an upper respiratory infection during service after reporting symptoms of chest congestion and sore throat. See July 1979 Service Treatment Record. Thus, the Board questions whether the Veteran's current lung disorder(s) is/are causally related to her in-service diagnosis. None of the opinions of record address this above-mentioned upper respiratory infection, and consequently have not considered all relevant, pertinent evidence of record. Because the Board finds that the medical opinions of record are not sufficient to determine this matter, a remand is appropriate. Specifically, the RO should obtain a new opinion regarding the nature and etiology of any and all respiratory condition(s) attributable to the Veteran throughout the period on appeal. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all respiratory condition(s) attributable to the Veteran throughout the period on appeal. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all respiratory condition(s) attributable to the Veteran throughout the period on appeal. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's condition manifested during, or is the result of, her active duty service, to include as due to asbestos exposure and/or as due to a diagnosed upper respiratory infection. In formulating his or her opinion(s), the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's service treatment records, including a July 1979 diagnosis of upper respiratory infection; (ii) The Veteran's service personnel records, including those reflecting her service aboard the U.S.S. Point Loma; (iii) The Veteran's post-service VA and private medical records, including those obtained from the Social Security Administration; (iv) Marie Uguen, et. al., Asbestos-related lung cancers: A retrospective clinical and pathological study, MOLECULAR AND CLINICAL ONCOLOGY J. (Jan. 30, 2017) (submitted in March 2021); and (v) The Veteran's competent lay statements, including her March 2016 VA Form 21-4138, July 2016 Notice of Disagreement, July 2016 VA Forms 21-4138, August 2016 VA Form 21-4138, November 2016 VA Form 21-4138, and her February 2021 hearing testimony, regarding her first-hand in-service experiences and the onset and continuity of her symptomatology. If the clinician determines that the Veteran's respiratory condition(s) is/are less likely than not due to her active duty service, the clinician should discuss what other factor(s) caused the disorder(s). In other words, the clinician should ascertain the most likely etiology of the Veteran's respiratory condition(s). A complete rationale must be provided for all opinions and conclusions reached. 2. Then, the RO should readjudicate the issue of entitlement to service connection for a respiratory disability. If the above-sought benefit remains denied, the RO should issue a Supplemental Statement of the Case (SSOC) to the Veteran and her representative. An appropriate period of time should be allowed for response before returning this appeal to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.