Citation Nr: 22017326 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 08-32 144 DATE: March 24, 2022 REMANDED The issue of entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure and claimed ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction is currently with the RO in St. Louis, Missouri. In November 2010, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board issued a decision in July 2020 denying the Veteran's claim of entitlement to service connection for a respiratory disorder. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Remand (JMR) in March 2021. Thereafter, in March 2021, the Court issued an Order granting the JMR and remanding the matter for action consistent with the terms of the JMR. Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure and claimed ionizing radiation exposure, is remanded. In March 2021, the Court remanded the Veteran's claim based on a JMR stating that the Board erred in relying upon an inadequate September 2015 VA examination report. Specifically, the Court stated that the examiner determined that "per peer reviewed medical literature the Veteran's claimed 'obstructive disease with shortness of breath' condition was caused by past chronic history of smoking", without reconciling this finding with the evidence of record reflecting that the Veteran did not use tobacco. Accordingly, the Board finds that a remand is required to obtain a competent VA addendum opinion in accordance with the directives in the JMR. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding treatment records. 2. Return the file to the September 2019 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a respiratory disorder that had its onset in service, or within one year of his separation from service, or is otherwise related to service, to include asbestos exposure and ionizing radiation? In rendering this opinion, the examiner is asked to specifically address the Veteran's contention that he has a respiratory disorder related to in-service asbestos and ionizing radiation exposure on board the USS Columbus; his duties required him to transverse the entire ship and he was very close to nuclear war heads. The examiner is also asked to specifically address COPD (chronic bronchitis, emphysema, and asthma), pulmonary fibrosis, obstructive sleep apnea, sinusitis, obstructive lung disease, and rhinitis and the Veteran's lay statements regarding smoking for only three months in service but not since service and regarding working in the iron industry but not as a welder (he was a foreman and was never in contact with chemicals, including asbestos). With respect to the Veteran's history of tobacco use, the examiner should specifically comment as to the likelihood that a remote history of tobacco use of the nature and degree described by the Veteran is a causal or contributory factor to his development of the current respiratory problems. (b.) If the diagnosed respiratory disorders are not related to service, please explain why or why not, and provide their etiology. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.