Citation Nr: 21071282 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 20-04 436 DATE: November 30, 2021 REMANDED Entitlement to service connection for asthma, to include as due to exposure to asbestos, fumes and chemicals, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to include as due to exposure to asbestos, fumes and chemicals, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1961 to April 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this proceeding has been associated with the record. In June 2021, the Board remanded the issues for further development. It has since returned for further appellate action. 1. Entitlement to service connection for asthma is remanded. 2. Entitlement to service connection for COPD is remanded. In the June 2021 remand, the Board instructed the VA examiner to provide a etiological opinion and to consider the Veteran's contention of exposure to jet fuels and other chemicals while serving. A September 2021 VA examiner provided an etiology opinion. The examiner however, failed to explain the discrepancy between the earlier VA examination where the Veteran was found not to have a diagnosis of COPD and the medical records indicating a current diagnosis of COPD. The examiner also did not explain the rationale behind the opinion that the jet fuel and other chemical exposure did not support the Veteran's claim or explain why the articles with regards to jet fuel exposure and its connection to respiratory condition do not apply to the Veteran's etiology for asthma and COPD. The examiner was asked to consider the Veteran and his spouse's statements, as well as the included articles regarding jet fuel exposure and how that would impact the Veteran's claims for asthma and/or COPD. Therefore, the Board finds there has not been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). The Board notes that a June 2021 opinion from Dr. A.C. indicating that exposure to fuel exhaust and cigarette smoking can be considered as potential causes of COPD. However, the speculative terminology used by this physician does not provide a sufficient basis for an award of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). Therefore, the Board finds that a remand is warranted to obtain addendum VA opinions that addresses the Veteran's contentions. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the claims file should be provided to an appropriate VA examiner for addendum VA opinions to determine the etiology of his claimed COPD and asthma. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for a new VA examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed COPD had its onset during any period of service, or is otherwise related to such period of service, to include exposure to jet fuel or other chemicals? The examiner should clarify the discrepancy between the previous VA examination's finding of lack of COPD diagnosis and the VA medical treatment record seemingly indicating COPD diagnosis. The examiner should also specifically address the June 2021 opinion from Dr. A.C. that exposure to fuel exhaust and cigarette smoking can be considered as potential causes of COPD. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed asthma had its onset during any period of service, or is otherwise related to such period of service, to include exposure to jet fuel or other chemicals? In offering such opinions, the examiner is requested to consider the Veteran's statements, the statement submitted by the Veteran's spouse, and the submitted articles regarding jet fuel exposure in April 2021. Any medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.