Citation Nr: 21073855 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-11 116 DATE: December 10, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to February 1973 and from November 1990 to July 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of the hearing is of record. In a December 2020 decision the Board denied entitlement to service connection for a respiratory disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and an August 2021 Court Order implemented a Joint Motion for Remand vacating the December 2020 denial and remanding the issue for further consideration. In August 2021 the Veteran and his representative were notified that his appeal had been returned to the Board, and that there was a 90-day period to submit additional evidence or argument. Clark v. O'Rourke, 30 Vet. App. 92, 9799 (2018). The 90-day period having lapsed, the Board may now address the appeal. 1. Entitlement to service connection for a respiratory disability. As noted in the Joint Motion for Remand, a June 2016 private examiner diagnosed the Veteran with chronic obstructive pulmonary disease (COPD), but also noted that the Veteran had more than one respiratory disability and stated that both COPD and asthma were present. While the medical opinions of record address the etiology of the Veteran's COPD, none of the opinions address the etiology of the diagnosed asthma, which is encompassed by the current claim for service connection for a respiratory disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, and in accordance with the Joint Motion for Remand, the appeal must be remanded for an addendum opinion addressing the etiology of the separately diagnosed asthma. As a final matter, the Board notes that effective August 5, 2021 asthma may be presumed to be causally related to fine particulate matter exposure in-service in Veteran's who served in certain locations, including Southwest Asia, after September 2001. 86 Fed. Reg. 42,724 (Aug. 5, 2021). Here, while the Veteran served during the Persian Gulf War generally, his service was prior to September 2001. Further, there is no evidence that the Veteran served in Southwest Asia, or any of the other locations considered by the amendment. As such, the newly created presumption does not apply in this case. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the December 2019 medical opinion, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's asthma is causally related to the Veteran's active service from April 1969 to February 1973 or from November 1990 to July 1991, including alleged asbestos exposure and inhaling jet fuel fumes and exhaust? Attention is invited to June 1991 service treatment records noting shortness of breath (labelled "STR - Medical" pgs. 7, 10 uploaded 2/1/13) and a June 2016 examination noting a separate diagnosis of asthma (labelled "Disability Benefits Questionnaire - Veteran Provided" pg. 7 uploaded 7/5/16). A detailed rationale for the opinion must be provided. 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. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.