In Denying Service Connection for a Respiratory Disorder, Board Erred When It Relied on an Inadequate Medical Opinion
CCK Law: Our Vital Role in Veterans Law
The appellant is the surviving spouse of a U.S. Navy veteran. The Board’s April 2015 decision relied on an October 2014 VA medical opinion to deny her husband disability compensation. He was seeking service connection for a respiratory disorder including chronic obstructive pulmonary disease, emphysema, and lung cancer; a collapsed lung; neuropathy of the left upper extremity; and neuropathy of the bilateral lower extremities, to include as secondary to asbestos exposure or a service-connected disability. Her husband died during the pendency of the appeal and the Court granted her motion to be substituted as the Appellant.
Outcome
The Court agreed with the Appellant’s arguments that the examiner failed to sufficiently answer the questions posed in the Board’s September 2014 request for a medical opinion. For instance, when the examiner addressed the Veteran’s lung cancer, the examiner summarily concluded that the Veteran’s “tobacco history [makes] it [] impossible to blame his lung cancer on purely asbestos exposure.” The Court held that the examiner failed to answer whether the Veteran’s lung cancer was “at least as likely as not” related to service and instead subjected him to an unnecessarily high standard. The Court held that remand was necessary because the Board relied on an inadequate medical opinion, which frustrated judicial review.
