Citation Nr: 21071267 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-41 492 DATE: November 30, 2021 REMANDED Entitlement to service connection for a respiratory condition, to include asthma, allergic rhinitis, and chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1967 to April 1969, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has previously remanded this matter in June 2018, October 2019, January 2021, and July 2021. Unfortunately, the Veteran's claim must be remanded once again for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim, so he is afforded every possible consideration. The Veteran asserts that service connection is warranted for a respiratory condition. He has current diagnoses of asthma, allergic rhinitis, and COPD. The Veteran contends that his respiratory condition is due to chemical and/or environmental exposures while serving in Vietnam, to include exposure to herbicide agents, contaminated water, poor air quality, humidity, and dust. He and his spouse have provided competent lay evidence of respiratory symptoms, including difficulty breathing, coughing, and nasal congestion, that began during service and have continued ever since. Upon review of the record, the Board finds that an adequate medical opinion addressing the etiology of the Veteran's asthma and allergic rhinitis has not yet been obtained. Although such an opinion was requested by the Board in its January 2021 remand, a VA opinion obtained in June 2021 only addressed the Veteran's diagnosis of COPD. In this opinion, the VA examiner cited evidence of normal pulmonary function testing in 2016 as a basis to find that the Veteran had no significant respiratory condition until COPD was diagnosed in 2018. However, this finding is factually incorrect as treatment records indicate that the Veteran has been diagnosed and treated for asthma since at least 2012. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Moreover, the examiner did not address or provide an etiology opinion for the Veteran's diagnoses of asthma or allergic rhinitis. Therefore, the Board finds this opinion to be inadequate. Further, in its most recent remand, in July 2021, the Board directed the RO to obtain a VA medical opinion to address whether the Veteran's respiratory condition is related to in-service exposure to herbicide agents. In an August 2021 opinion, a VA examiner provided a negative nexus opinion based solely on a lack of documented treatment or diagnosis during service, noting that if any respiratory condition was caused by herbicide agent exposure, symptoms would be expected to be present and continuous ever since the time of such exposure. In making this finding, the examiner failed to consider or discuss the competent lay statements of record attesting to the onset of respiratory symptoms during service. Moreover, the Board finds the examiner's conclusion that symptoms would begin at the time of exposure to be conclusory and not supported by any medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). Therefore, the Board finds this opinion to be inadequate. In light of the above, the Board finds that the record still does not contain a medical opinion that is sufficient to fairly decide the Veteran's claim for a respiratory condition. As such, the claim must be remanded once again because the RO has not yet complied with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an addendum medical opinion must be obtained from a qualified VA physician that is adequate to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matter is REMANDED for the following action: Forward the Veteran's claims file to a VA physician (M.D) of appropriate expertise who has not previously provided an opinion in this case to provide an addendum opinion addressing the nature and etiology of the Veteran's respiratory condition. A VA examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that any currently-diagnosed respiratory condition, to include asthma, allergic rhinitis, and COPD, was incurred in or caused by an in-service disease, event, or injury, to include exposure to herbicide agents and/or other environmental hazards? In providing a response to the above, the examiner must fully address: (i) each separate respiratory condition diagnosed during the appeal period, including, but not limited to, asthma, allergic rhinitis, and COPD, and attempt to provide an etiology for each condition; (ii) the Veteran's contention that his respiratory condition was caused or aggravated by exposure to herbicide agents, contaminated water, poor air quality, humidity, and/or dust during service in Vietnam; (iii) and the Veteran's and his spouse's competent lay statements that he developed respiratory symptoms, to include shortness of breath, coughing, wheezing, allergies, and nasal congestion, during service and that these symptoms have continued ever since service. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran is competent to report his medical history, including the onset and continuity of symptoms, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinion offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's claims file, when necessary, to support the conclusion reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner and RO are advised that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.