Citation Nr: 21065043 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 20-23 899 DATE: October 22, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served in the United States Army from December 1963 to December 1965, including service in the Republic of Vietnam. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) January 2019 rating decision of the Agency of Original Jurisdiction (AOJ). In June 2021 the Board most recently remanded the Veteran's claim for additional development. Specifically, the Board instructed the AOJ to obtain an addendum medical opinion to determine whether the Veteran's already service-connected disabilities aggravated his asthma. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the June 2021 remand, and for the reasons discussed below, the Board finds that the development of the Veteran's case by the AOJ has been inadequate. Therefore, there has not been substantial compliance with the remand directives, and a further remand is necessary. 1. Entitlement to service connection for a respiratory disability, to include as secondary to service-connected disabilities is remanded. The Veteran, through his representative, argues that his service-connected disabilities aggravated his asthma beyond the natural progression of the disease. See June 2021 Appellant Brief. In June 2021, the Board remanded the Veteran's claim for additional development. Relevant to the instant decision, the Board requested the AOJ to obtain an addendum medical opinion addressing whether the Veteran's asthma is "caused by a service-connected disability" and/or whether his asthma has undergone "an incremental increase," or aggravation. At the time of the remand (and presently), the Veteran has established service connection for: obstructive sleep apnea (OSA), posttraumatic stress disorder (PTSD), tinnitus, neuropathy of the right superficial and deep peroneal nerves as due to herbicide exposure, bilateral hearing loss, and a fracture of his right thumb. Pursuant to the June 2021 remand, the AOJ obtained an addendum medical opinion in August 2021. The examiner found that "there is insufficient evidence to establish a nexus with greater than 50% probability" that the Veteran's asthma was aggravated by any service-connected disability. The Board notes two issues with the examiner's opinion, both of which on their own render the opinion inadequate. First, the examiner's findings are conclusory, in that there is no discussion as to why there is no nexus between the Veteran's service-connected disabilities and his asthma. Second, the examiner incorrectly applied the law, arguing that a nexus "with greater than 50% probability" is necessary to determine service connection. The Board notes that the controlling laws state that the standard is "at least as likely as not," or the equivalent of at least a 50% probability. In effect, the Veteran has to show a connection of only 50% probability, rather than a probability greater than that. While the Board regrets the additional delay, a further remand is necessary to allow the Veteran to fully develop his claim. The matters are REMANDED for the following action: 1. Obtain from a qualified medical examiner, an addendum medical opinion regarding the etiology of the Veteran's respiratory disorder to include asthma. The examiner shall be provided with a copy of the Veteran's claims files, as well as a copy of these remand directives. The examiner must address the following: (a.) Whether it is as least as likely as not (probability of 50 percent or greater) that the Veteran's asthma is aggravated by a service-connected disability. The term "aggravation" in this context is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. The examiner must provide a complete rationale for the required opinion. If the examiner cannot provide the necessary opinions without resorting to mere speculation, they must explain why that is the case. (Continued on the next page) If the examiner is unable to provide the required opinions without an in-person examination of the Veteran, the AOJ shall schedule the examination. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.