Citation Nr: 21001270 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-13 060 DATE: January 7, 2021 REMANDED Entitlement to service connection for a respiratory condition, to include as due to exposure to herbicides and asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1966 to August 1968, including service in the Republic of Vietnam. The Board most recently remanded the claim in September 2020 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). In a December 2020 brief, the Veteran’s representative argued that the October 2020 VA medical opinion obtained on remand is inadequate. The Board agrees and will remand for another opinion. claim must be remanded for an adequate opinion. Despite the directive that the examiner specifically identify all respiratory diagnoses, the October 2020 VA medical opinion addressed only COPD and emphysema. The examiner made no comment as to whether those were the only currently diagnosed respiratory conditions. The examiner also improperly based the negative opinion on the fact that neither COPD or emphysema are on the list of presumptive diseases related to Agent Orange. That does not preclude consideration of service connection on a direct basis. The examiner did not adequately address the May 2012 private medical opinion because the VA examiner started with the faulty premise that the fact that the diagnoses are not on the list of presumptive diseases was determinative. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a different examiner than the October 2020 opinion, if possible, regarding the nature and etiology of the Veteran’s respiratory disabilities to include COPD and emphysema. The examiner should review pertinent records. Based on a review of the record (and a new examination or telehealth interview if determined to be necessary by the examiner) the examiner must address the following: (a.) Specifically identify all current respiratory disability to include COPD and emphysema. (b.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed respiratory disability is related to the Veteran’s active service, to include his presumed exposure to Agent Orange and asbestos? The fact that a diagnosed disease is not on the list of presumptive diseases cannot be the basis of a negative opinion. The examiner should consider and discuss as necessary the May 2012 positive private nexus opinion. The examiner must fully explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.