Citation Nr: 21003670 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-62 942 DATE: January 22, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include asthma, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 2002 to January 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the record shows that additional VA treatment records were associated with the record within a year of the November 2014 rating decision relevant to the issue on appeal. Since the RO never determined whether these additional records constituted new and material evidence with respect to the November 2014 rating decision, that decision never became final and is the proper rating decision on appeal in this case. 38 C.F.R. § 3.156(b). The Veteran testified before the undersigned Veterans Law Judge in June 2017. The Board remanded the appeal for additional development in December 2018. The Veteran relates his respiratory disorder to toxic environmental exposures as a machinist and to inhaling smoke when he fought a ship fire. See November 2020 attorney brief; June 2017 Hearing Transcript at 4-7; September 2014 Report of General Information. The Veteran alternatively asserts that service connection for his respiratory disorder should be granted on a presumptive basis under 38 C.F.R. § 3.309 or secondary to his service-connected sleep apnea. See November 2020 attorney brief at 3. The record contains two negative nexus opinions. First, as explained in the December 2018 remand, the September 2014 VA examiner’s opinion is inadequate, as the examiner based his negative opinion on the lack of respiratory problems documented in the STRs, disregarded the documented possibility of exposure to respiratory irritants while in service, and did not consider the Veteran’s lay statements as to chemical and toxic exposures coincident with his duties. See December 2018 Board remand at 2. Pursuant to the December 2018 Board remand, an addendum opinion was obtained from a different VA examiner in December 2019 to opine on the etiology of the Veteran’s respiratory disorder. The December 2019 VA examiner opined that the Veteran’s respiratory disorder was less likely than not related to his military service and exposures therein. See December 2019 VA Examination at 2. The Board finds the December 2019 etiology opinion lacks any probative value. In this regard, the December 2019 examiner based her opinion solely on the fact that the Veteran is a cigarette smoker. Id. In so doing, the examiner failed to opine on other possible etiologies of the Veteran’s respiratory disorder established by evidence of record; in particular, the Veteran’s lengthy exposure to toxic chemical irritants as a machinist, smoke inhalation from fighting a fire, and the Veteran’s assertions that his disability is secondary to service-connected sleep apnea. The quality of a medical opinion’s reasoning affects its probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). As the December 2019 opinion failed to provide any reasoning with respect to other possible etiologies of the Veteran’s condition, the opinion carries no probative weight. The record also contains a positive nexus opinion from a VA pulmonologist, Dr. E.C. In the December 2018 remand, the Board found Dr. E.C.’s April 2015 etiology opinion inadequate, because it was rendered without a review of the relevant evidence of record, and was instead based on the Veteran’s lay statements as to episodic shortness of breath since 2004, which is contrary to the contemporaneous evidence of record. See, e.g., July 2012 VA treatment record (Veteran denies any history of chronic obstructive pulmonary disease or asthma); November 2012 VA treatment record (Veteran denies any previous lung problems including no history of asthma). Thus, an addendum opinion is needed on remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: Refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran’s diagnosed asthma. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Please concede a diagnosis of asthma, as indicated by the Veteran’s treating pulmonologist, Dr. E.C. (1) Following a review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s asthma: (a) had its onset in service or is otherwise the result of service, to include: (i) noted exposure to the possibility of breathing in smoke laden with burning fiberglass, cocaine, and other impurities therein, which the Veteran indicated being exposed to for approximately 1-2 hours. See undated Chronological Record of Medical Care in STRs; or (ii) conceded routine hazardous exposures in service as a machinery repairman working in small, poorly ventilated areas while performing duties such as welding, brazing, and grinding (see Board Hearing Transcript at 2, 5). (b) is proximately due to the Veteran’s service-connected sleep apnea; or (c) has been aggravated (worsened beyond natural progression) by the Veteran’s service-connected sleep apnea. In addressing question (1)(a), please discuss (1) the Veteran’s smoking history; (2) the March, April, and August 2015 lay statements of record noting observed symptoms during service; and (3) the 2012 VA treatment records in which the Veteran denied any prior lung problems. Please do not rely solely on the absence of documented evidence in the service treatment records to support a negative opinion, as that will be considered inadequate. In addressing questions (1)(b) and (1)(c), please provide two separate opinions, and please note that it is not necessary that sleep apnea be service-connected, or even diagnosed, at the time his asthma is incurred, and reliance on this fact in support of a negative opinion will render it inadequate. (2) The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that bronchiectasis manifested to a compensable degree (intermittent productive cough with acute infection requiring a course of antibiotics at least twice a year or FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted) within one year of separation from service, or by January 2013. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.