Citation Nr: 21068316 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-32 820 DATE: November 10, 2021 REMANDED Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to June 1969, including combat and overseas service in Vietnam. He was a recipient of the Purple Heart. The Veteran had additional active duty service from February 1971 to November 1979 and March 2003 to July 2003. He died in December 2014. His surviving spouse has been substituted as the Appellant for purposes of processing the claim to completion. See April 2016 correspondence. The Veteran appealed an April 2013 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in June 2019. A transcript is of record. The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the October 2020 and August 2021 Board decisions, prior VA opinions of record were inadequate as they did not fully contemplate all respiratory conditions identified by the record or provide adequate rationale as to all theories of entitlement. Specifically, chronic bronchitis, emphysema, chronic obstructive pulmonary disease (COPD), asthma, and pneumonia were the various respiratory conditions identified. See July 2013, October 2014, and December 2014 treatment records. The opinion on remand was to consider each condition separately. Additionally, the opinion on remand was to consider the effects of herbicide agents, the effects of tear gas, whether there was an increase in severity as to the Veterans last period of active duty service, and consideration of various articles of record received in October 2012 and July 2016, relating exposure to herbicide agents and tear gas to lung conditions. See June 1969 DD Form 214; March 2002 treatment records; October 2012 Veteran statement. The Board notes the Veteran's last period of active service began in March 2003. See July 2003 DD Form 214. The Veteran's service treatment records (STRs) include a March 2003 pre-deployment examination. The Board will construe the March 2003 pre-deployment examination as the Veteran's entrance examination for his last period of active service. Medical evidence of record suggests that the Veteran may have had respiratory conditions prior to his last period of active service. See October 2012 examination report. The Veteran was not noted to have any pre-existing respiratory conditions on his March 2003 pre-deployment examination. On remand the Board will direct for the appropriate inquiry regarding whether the Veteran may have had a pre-existing condition and, if so, whether it was aggravated by his last period of active service. Overall, the September 2021 VA opinions did not comply with the remand instructions. The reviewing clinician did not provide separate opinions as to each identified respiratory condition and did not provide adequate rationale regarding whether the Veteran had a respiratory condition prior to his last period of active service. 38 U.S.C. § 1111. Specifically, the September 2021 VA opinions did not address asthma or emphysema. Additionally, there is no reference of the articles being considered. As such, remand is required for new opinions that adequately addresses all theories of entitlement. The matter is REMANDED for the following action: 1. Obtain an opinion from a different qualified clinician to determine the nature and etiology of the Veteran's respiratory condition(s). The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After the record review, the reviewing clinician should identify all respiratory conditions that were present at any point during the appellate period, to include, but not limited to, chronic bronchitis, emphysema, COPD, asthma, and pneumonia. Then, the reviewing clinician is asked to separately respond for each identified respiratory condition, to the following inquiries: The reviewing clinician is to accept as true that the Veteran was exposed to herbicide agents and tear gas during active duty service. The reviewing clinician is to consider the various articles of record, received in October 2012 and July 2016, relating exposure to herbicide agents and tear gas to lung conditions. Is it at least as likely as not that the Veteran's chronic bronchitis was incurred in, or otherwise related, to his time on active service, to include, but not limited to, exposure to herbicide agents, tear gas during active duty service, and any in-service treatment for respiratory infections? Is it at least as likely as not that the Veteran's emphysema was incurred in, or otherwise related, to his time on active service, to include, but not limited to, exposure to herbicide agents, tear gas during active duty service, and any in-service treatment for respiratory infections? Is it at least as likely as not that the Veteran's COPD was incurred in, or otherwise related, to his time on active service, to include, but not limited to, exposure to herbicide agents, tear gas during active duty service, and any in-service treatment for respiratory infections? Is it at least as likely as not that the Veteran's asthma was incurred in, or otherwise related, to his time on active service, to include, but not limited to, exposure to herbicide agents, tear gas during active duty service, and any in-service treatment for respiratory infections? Is it at least as likely as not that the Veteran's pneumonia was incurred in, or otherwise related, to his time on active service, to include, but not limited to, exposure to herbicide agents, tear gas during active duty service, and any in-service treatment for respiratory infections? Is it at least as likely as not that any other respiratory condition was incurred in, or otherwise related, to his time on active service, to include, but not limited to, exposure to herbicide agents, tear gas during active duty service, and any in-service treatment for respiratory infections? Did the Veteran's chronic bronchitis clearly and unmistakably (undebatably) pre-exist his last period of active duty? If the previous question is answered in the affirmative, was the Veteran's chronic bronchitis clearly and unmistakably (undebatably) NOT aggravated by service? Did the Veteran's emphysema clearly and unmistakably (undebatably) pre-exist his last period of active duty? If the previous question is answered in the affirmative, was the Veteran's emphysema clearly and unmistakably (undebatably) NOT aggravated by service? Did the Veteran's COPD clearly and unmistakably (undebatably) pre-exist his last period of active duty? If the previous question is answered in the affirmative, was the Veteran's COPD clearly and unmistakably (undebatably) NOT aggravated by service? Did the Veteran's asthma clearly and unmistakably (undebatably) pre-exist his last period of active duty? If the previous question is answered in the affirmative, was the Veteran's asthma clearly and unmistakably (undebatably) NOT aggravated by service? Did the Veteran's pneumonia clearly and unmistakably (undebatably) pre-exist his last period of active duty? If the previous question is answered in the affirmative, was the Veteran's pneumonia clearly and unmistakably (undebatably) NOT aggravated by service? If any other respiratory condition is identified during the period on appeal, did the Veteran's other respiratory condition clearly and unmistakably (undebatably) pre-exist his last period of active duty? If the previous question is answered in the affirmative, was the Veteran's other respiratory condition clearly and unmistakably (undebatably) NOT aggravated by service? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Appellant and her representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.