Citation Nr: 21000537 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-33 834 DATE: January 5, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include asthma or allergic rhinitis, including as due to in-service exposure to an herbicide agent, is remanded. REASONS FOR REMAND The Veteran had active service from October 1967 to October 1969, including in the Republic of Vietnam. This case has a long procedural history. Most recently, the Board denied the Veteran’s claim in June 2019. The Veteran, through an attorney, and VA’s Office of General Counsel appealed the Board’s June 2019 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). In August 2020, the Court granted the Joint Motion, vacating and remanding the Board’s June 2019 decision. The Veteran contends that he incurred a respiratory disability (variously described as allergic rhinitis or hay fever) during active service. He alternatively contends that his respiratory disability clearly and unmistakably existed prior to service and clearly and unmistakably was aggravated by service. He also alternatively contends that in-service exposure to an herbicide agent while in Vietnam caused or aggravated (permanently worsened) his respiratory disability. It is undisputed that the Veteran served in Vietnam; thus, his in-service exposure to an herbicide agent is presumed. See 38 U.S.C. § 3.307(a)(6)(iii) (2019). The Board acknowledges that this appeal has been remanded previously, most recently in May 2018. The Board also notes that it is bound by the Court’s August 2020 Order granting the Joint Motion. Both parties to the Joint Motion contended that the Board erred in relying on a February 2019 medical nexus opinion concerning the contended etiological relationship between a respiratory disability and active service when it denied the Veteran’s currently appealed claim in June 2019. They contended that the February 2019 opinion was inadequate for VA adjudication purposes because it did not comply with the Board’s prior remand directives in May 2018 concerning a November 1968 service treatment record which documented in-service complaints of and treatment for hay fever and applied the incorrect standard (“at least as likely as not” versus “clearly and unmistakably existed prior to service and clearly and unmistakably was aggravated by service”) in addressing the contended etiological relationship between a respiratory disability and active service (as directed in the Board’s May 2018 remand). Both parties to the Joint Motion further contended that the Board erred in June 2019 by not ensuring that VA advised the Veteran in approximately January 2017 that private treatment records could not be obtained (as directed in the Board’s November 2016 remand). The Board again notes that it is bound by the Court’s Order granting the Joint Motion. Thus, the Board finds that, on remand, the Agency of Original Jurisdiction (AOJ) should conduct appropriate development in compliance with the Joint Motion and this REMAND. The matters are REMANDED for the following action: 1. Notify the Veteran and his representative of VA’s inability to obtain private treatment records in approximately January 2017 from Dr. Richard Schadie, Rantoul, Illinois, because this medical practice had closed. Ask the Veteran to submit any records from this clinician which are in his possession. A copy of any notification sent to the Veteran, and any reply, to include any records submitted, should be associated with the claims file. 2. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s respiratory disability. If possible, this opinion should be provided by a clinician other than the clinicians who provided VA medical nexus opinions dated in March 2017 and in February 2019. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a respiratory disability, to include allergic rhinitis or hay fever, is related to active service or any incident of service. The clinician also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s conceded in-service exposure to an herbicide agent while in Vietnam caused or aggravated (permanently worsened) a respiratory disability, to include allergic rhinitis or hay fever. The clinician next is asked to state whether a respiratory disability, to include allergic rhinitis or hay fever, clearly and unmistakably existed prior to service and, if so, whether it clearly and unmistakably was aggravated (permanently worsened) by service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each respiratory disability experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to mere speculation, then the clinician should explain why this is so. The clinician is asked to address the clinical significance (if any) of a November 1968 report of hay fever found in the Veteran’s service treatment records. The clinician must state that this record was reviewed in his or her opinion. The clinician is advised that the Veteran served in-country in the Republic of Vietnam so his in-service exposure to an herbicide agent is presumed. The clinician also is advised not to review or rely upon VA medical nexus opinions dated on March 21, 2017, and on February 21, 2019, in preparing his or her own opinion. The clinician finally is advised that the lack of contemporaneous records documenting complaints of or treatment for a respiratory disability, alone, is insufficient rationale for a medical nexus opinion. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.