Citation Nr: 21067093 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 10-31 460 DATE: November 3, 2021 REMANDED Entitlement to service connection for a respiratory disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1967 to October 1969, including service in the Republic of Vietnam for which he was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in March 2016 to afford the Veteran a hearing, which was conducted before the undersigned Veterans Law Judge in March 2018. The Board remanded the claim for further development in May 2018, July 2020, and March 2021. Notably, during the pendency of this appeal, a July 2021 rating decision awarded service connection for a skin disorder. This issue is accordingly not in appellate status. Remand is necessary, as there has not been substantial compliance with the directives of the prior Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). In this regard, the April 2021 VA examiner did not address whether a nexus to service was medically plausible based on the Veteran's reports and instead speculatively stated that exposure to chemicals "can trigger a respiratory reaction as allergies, asthma." Furthermore, the examiner did not provide sufficient rationale for her negative opinion based on the Veteran's conceded respiratory from chemical exposures during the Veteran's combat service. Thus, an addendum opinion is warranted on remand under Stegall. The matter is REMANDED for the following action: Obtain an addendum opinion from an examiner other than the October 2019, September 2020, and April 2021 VA examiners addressing the etiology of the Veteran's respiratory disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed respiratory disorders, including asthma, chronic obstructive pulmonary disease, and mediastinal pulmonary nodes (see September 2020 VA examination report) had their onset in or are otherwise related to service, to include as a result of conceded exposure to herbicide agents therein. Please render separate opinions for each diagnosed condition, even if such is asymptomatic or has resolved. In addressing this question, the examiner must: (1) discuss the Veteran's history of smoking as noted in his VA outpatient records (1/2 to 1 ppd in April 1994 since the age of 17, or since 1962; notation of 53 pack years in March 2019, having quit around 30 years prior); and (2) concede a respiratory injury from the Veteran's exposure to chemical fumes during combat service by way of ammunition powder, mortars, and explosions (see Board Hearing Transcript at 5-7), even though it is not documented in the Veteran's service treatment records, and determine, based on the same, whether a nexus between the Veteran's respiratory disorder and service is "medically plausible." Failure to consider the Veteran's lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion, as well as the fact that presumptive service connection is not available for the condition. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.