Citation Nr: 21077632 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-37 579 DATE: December 30, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as due to herbicide agent exposure and/or or as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to August 1969, which included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision from a Department of Veterans' Affairs Regional Office. The Board previously remanded the Veteran's claim for service connection for COPD in October 2018 and June 2021 to obtain addendum medical opinions. Following the June 2021 remand, addendum opinions for COPD were obtained in September 2021. A Supplemental Statement of the Case was issued, and the appeal was returned to the Board for further consideration. The Board's October 2018 decision also remanded claims for service connection for hypertension and bladder cancer. In the June 2021 decision the Board granted service connection for bladder cancer and remanded the claim for service connection for hypertension. In an October 2021 rating decision, the Regional Office granted service connection for hypertension. The claims for entitlement to service connection for bladder cancer and hypertension have been granted in full and are no longer on appeal. 1. Entitlement to service connection for COPD, including as due to herbicide agent exposure and/or or as secondary to service-connected PTSD, is remanded. The Veteran's claim for service connection for COPD was remanded by the Board in October 2018 and June 2021 for further development, specifically to obtain new VA nexus opinions. Unfortunately, the Board's prior remand instructions were not substantially complied with, and another remand is necessary to ensure there is a complete record upon which to decide the claim. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2021 the Board remanded the claim to obtain addendum opinions that addressed whether the Veteran's COPD was at least as likely as not related to service, to herbicide agent exposure. The June 2021 remand noted that, in its 2010 update on possible relationships between Agent Orange exposure and diseases as determined by the National Academy of Sciences (NAS), VA wrote, "NAS noted that two new studies reported statistically significant evidence of association between herbicide exposure and chronic obstructive pulmonary disease (COPD)." See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012). The remand also stated that, more recently, the 2018 update from the NAS states that one of the studies referenced above "found a statistically significant excess of mortality from COPD when comparing the deployed and non-deployed groups." See Nat'l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 2018 at 518. The remand instructions specifically requested that the examiner address and consider the NAS's 2018 update. The June 2021 remand instructions also requested that the examiner address a study the Veteran had submitted in support of his claim titled "Mortality patterns of Army Chemical Corps veterans who were occupationally exposed to herbicides in Vietnam. Annals of Epidemiology," which found that Army Chemical Corps Vietnam veterans who were occupationally exposed to herbicides experienced a significant excess in mortality from diseases of the respiratory system (COPD) in comparison with their non-Vietnam veteran peers. New opinions were provided in September 2021. The examiner provided two similar opinions that each concluded the Veteran's COPD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The provided rationale states that "[h]is COPD was diagnosed many years after military discharge in 7/13. He has history of tobacco abuse in remission. The major etiology of COPD is cigarette smoking." The Board has already found that the August 2019 VA medical opinion was inadequate because it primarily focused on the relative risk factors of tobacco use compared to herbicide exposure rather than providing a rationale addressing whether it is at least as likely as not that herbicide exposure caused the Veteran's COPD, and failed to provide any supporting evidence as to why smoking cigarettes over the course of the Veteran's adult life is "far and away more likely" to have contributed to his COPD than remote chemical exposures in Vietnam. The September 2021 opinions are largely duplicative of the inadequate August 2019 opinions. The examiner simply stated that the Veteran's COPD was diagnosed many years after military discharge, that the Veteran has history of tobacco abuse in remission, and that the major etiology of COPD is cigarette smoking. The September 2021 medical opinions again fail to provide any supporting rationale as to why smoking cigarettes is the major etiology of the Veteran's COPD and does not provide any rationale as to whether COPD is at least as likely as not due to herbicide exposures in Vietnam. Furthermore, the examiner failed to address any of the studies and articles as required by the Board's June 2021 remand instructions. As such, the September 2021 opinions are not adequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Regrettably, another remand is required to obtain addendum medical opinions to determine the nature and etiology of the Veteran's COPD. The matters are REMANDED for the following action: Obtain an addendum medical opinion to determine the nature and etiology of the Veteran's COPD. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD is related to herbicide exposure. The examiner must address the following study that the Veteran submitted, which found Vietnam veterans who were occupationally exposed to herbicides experienced a significant excess in mortality from diseases of the respiratory system (COPD) in comparison with their non-Vietnam veteran peers: Cypel Y, Kang H. 2010. Mortality patterns of Army Chemical Corps veterans who were occupationally exposed to herbicides in Vietnam. Annals of Epidemiology 20(5):339346. The examiner must also address the 2010 and 2018 National Academy of Sciences Report: Veterans and Agent Orange updates regarding COPD. A complete rationale for all opinions and conclusions should be provided. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.