Citation Nr: 21073993 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 15-37 510 DATE: December 13, 2021 REMANDED The claim of entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and asthma, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to May 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2012 by a Department of Veterans Affairs (VA) Regional Office. In September 2018, March 2021, and August 2021, the Board remanded the appeal for additional development and it now returns for further appellate review. The claim of entitlement to service connection for a respiratory disorder, to include COPD and asthma is remanded. Throughout the appeal, the Veteran has maintained that his currently diagnosed respiratory disorder is related to his presumed in-service herbicide exposure and/or alleged napalm exposure. As to the latter, the Veteran states in May 1969 and on June 7, 1969, he was positioned close to napalm explosions and lost his breath. See November 2012 notice of disagreement. The Veteran's service treatment records are negative for respiratory complaints and/or disability. However, his April 1968 pre-induction examination shows a history of "childhood asthma" and the Veteran denied symptoms since the age of 12. Post-service treatment records show a diagnosis of COPD as early as January 1998. In connection with the Veteran's claim and pursuant to the September 2018 remand, he was afforded a VA examination in December 2019. Significantly, this examination report shows diagnoses of both asthma as well as COPD and the examiner opined that such were less likely than not due to the Veteran's active service, to include herbicide exposure, because the Veteran's service separation examination and history were negative for a respiratory disability or symptoms which would indicate onset of a respiratory disability. Unfortunately, as the opinion made no attempt to explain how the absence of in-service findings is dispositive of these matters, and is bereft of any meaningful discussion of whether the conditions, even if of delayed onset and diagnosis, are etiologically related to herbicide agent exposure in service, the Board found that this opinion was inadequate and remanded the claim for an additional medical opinion in March 2021. Pursuant to the March 2021 remand, another VA medical opinion was obtained in March 2021. Significantly, the March 2021 VA examiner also opined that it was less likely than not that the Veteran's asthma and COPD are related to his active service, to include his presumed herbicide exposure. As rationale for this opinion, the examiner noted that the Veteran's service treatment records were silent for symptoms consistent with asthma and/or COPD. While the Veteran's enlistment examination was positive for "childhood asthma," the Veteran denied experiencing symptoms since the age of 12 and there was no evidence of recurrence in service or within 12 months of discharge. Furthermore, medical treatise evidence does not list herbicide exposure as a cause of asthma or COPD. Unfortunately, as was noted in the August 2021 remand, neither the December 2019 nor the March 2021 VA medical opinions address the Veteran's claimed napalm exposure. Significantly, in his November 2012 Notice of Disagreement, the Veteran wrote that, in May 1969 and on June 7, 1969, he was positioned close enough to U.S. napalm explosions and lost his breath. As such, the Board remanded the claim for an additional medical opinion in August 2021 Pursuant to the August 2021 remand, another medical opinion was obtained in September 2021. Significantly, the September 2021 VA examiner reviewed the record and opined that the Veteran's respiratory disorder was not caused by his acknowledged napalm exposure. As rationale, she noted that the Veteran had a history of longstanding asthma prior to service, which is shown on his April 1968 pre-induction examination, and that childhood asthma is often chronic and, in many cases, progressive. Further, asthma often follows a bimodal age distribution pattern, occurring in childhood, resolving in teen years, and recurring in adulthood. As a result, over time, combined with the Veteran's smoking history, the asthma has progressed to COPD, and that any correlation between the Veteran's COPD and exposure to napalm would be entirely speculative. Unfortunately, the Board finds that the September 2021 VA medical opinion is also inadequate. Significantly, the opinion is bereft of any discussion regarding whether either of the Veteran's respiratory disorders are etiologically related to his napalm exposure, but instead declares such to be "speculative," which is essentially a non-opinion. Further, in his November 2021 Appellant's Post Remand Brief, the Veteran's representative introduced a new theory of entitlement as he alleged the Veteran's development of COPD is due to in-service exposures and/or an aggravation of his asthma noted on his April 1968 pre-induction examination. Thus, based on the foregoing, the Board finds that a remand is necessary in order to obtain an addendum medical opinion addressing the etiology of the Veteran's diagnosed respiratory disorders, to include whether the Veteran's current asthma pre-existed his active service and, if so, whether such was aggravated therein. The matter is REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate examiner to obtain an opinion addressing the etiology of the Veteran's respiratory disorders, to include COPD and asthma. Following a review of the record (to include the December 2019, March 2021, and September 2021 VA medical opinions noted above) the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed respiratory disorder is caused by the Veteran's alleged in-service exposure to napalm, which "took his breath away?" (B) For the Veteran's currently diagnosed asthma, the examiner is asked to opine as to whether there is clear and unmistakable evidence that such disorder pre-existed his entry to active duty service in May 1968. (i) If there is clear and unmistakable evidence that asthma pre-existed active duty, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing asthma did not undergo an increase in the underlying pathology during such period of active duty, i.e., was not aggravated during service. If there was an increase in the severity of the disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence asthma pre-existed active duty, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder had its onset in, or is otherwise related to, such period of active duty, to include the Veteran's in-service exposure to napalm. A rationale for any opinions offered should be provided. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.