Citation Nr: 21071606 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-25 641 DATE: November 30, 2021 REMANDED Entitlement to service connection for a left lug disability and biopsy, 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 November 1967 to November 1969, with service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in January 2020 and again in May 2021. Specifically, in May 2021, the Board directed that the RO contact the Veteran and request that he provide a completed VA Form 21-4142, Authorization for Release of Information for all available private medical treatment records and to obtain a medical opinion as to the etiology of the Veteran's lung disability. The examiner was asked to determine whether the Veteran's lung disability was causally or etiologically related to military service, to include as due to in-service herbicide exposure and to address the Veteran's separation examination indicating shortness of breath. Pursuant to the Board's prior remand, the Veteran was provided a VA Form 21-4142 in May 2021. Additionally, medical opinions were obtained in September 2021 and October 2021. However, the Board finds that the medical opinions are inadequate. Because there has not been substantial compliance with the Board's remand directives, further remand is necessary. Entitlement to service connection for a left lug disability and biopsy, to include as due to exposure to herbicide agents, is remanded. In a September 2021 Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) DBQ, a VA examiner noted that the Veteran had COPD. The examiner opined that it was at least as likely than not that the Veteran's condition was incurred in or caused by the claimed in-service injury, event, or illness, to include as specifically due to herbicide exposure. The examiner further stated that while the Veteran had a history of COPD using inhalers, there was no diagnosis of COPD in his medical records. In a September 2021 clarifying addendum opinion, the examiner was asked to confirm or rule out a diagnosis of COPD; provide a medical opinion with supporting rationale as to whether the Veteran's COPD was related to service, to include as due to herbicide exposure or his in-service complaint of shortness of breath; and to determine whether the Veteran's left lung mass was related to service, to include as due to herbicide exposure or his in-service complaint of shortness of breath. In response, the examiner stated that the Veteran was diagnosed with COPD in service and that the lung mass was diagnosed in 2015, several years after service. The examiner further noted that while the Veteran was not treated for COPD in service, it can be said that the Veteran was exposed to herbicides in service which "could cause COPD later in life and also lung mass." In an October 2021 Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) DBQ, another VA examiner noted that the Veteran had COPD and a benign or malignant neoplasm or metastases of respiratory system (LLL mass). The examiner opined that it was less likely than not that the Veteran's COPD and LLL lung mass was incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that there was no indication of the presence of chronic lung disease noted while in service, to include at discharge. The examiner also noted that a November 1969 Report of Medical History noted "shortness of breath." The examiner further reported that chronic pulmonary pathology related to tobacco abuse was first noticed several decades later. The examiner also noted that records indicated a biopsy of the LLL mass was performed around 2012, but that the original pathology was unavailable. And, regarding the COPD, the examiner noted that the Veteran had a 55-pack year history of tobacco abuse ongoing as of June 2021. Further, the examiner stated that there was no indication of the presence of asbestosis. The Board finds that the August 2021 medical opinion is inadequate. In this regard, the examiner relied on an inaccurate premise by stating that there was no diagnosis of COPD in the Veteran's medical records. Here, there are various notations of treatment for and a diagnosis of COPD in the Veteran's medical records. Further, the examiner opined that it was at least as likely as not that the Veteran's condition was due to in-service herbicide exposure, but no rationale was provided in support of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board also finds that the August 2021 addendum opinion is inadequate as the examiner did not provide sufficient rationale as to the opinion relating to herbicide exposure. Further, the examiner did not provide an etiology opinion relating to the Veteran's left lung mass. The Board additionally finds that the October 2021 medical opinion is inadequate. Here, the examiner appeared to rely on the absence of treatment or complaints in the Veteran's service treatment records in indicating that there was no nexus between the Veteran's lung disorders and service. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the VA examiner's conclusion was improperly predicated on a lack of documentation in the medical record). Further, the examiner noted that there was no indication of asbestos exposure; however, the examiner did not provide an opinion as to whether the Veteran's lung disability was causally or etiologically related to in-service herbicide exposure. Given these inadequacies, the Board finds that further remand is warranted. The matters are REMANDED for the following action: 1. Forward the Veteran's entire claims file to a pulmonologist or other qualified VA examiner for an opinion regarding the etiology of his claimed lung disability(ies). If the examiner determines an additional examination is necessary, such an examination should be scheduled. Following a review of the entire claims file, to include this Remand, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lung disabilities, to include COPD and a left lung mass are causally or etiologically related to the Veteran's military service, to include as due to presumed in-service herbicide agent exposure. In providing the above medical opinion, the examiner must address the Veteran's separation examination indicating shortness of breath. 2. Re-adjudicate the matter. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hanson, Tiffany 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.