Citation Nr: 21005529 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-09 762 DATE: February 1, 2021 ISSUES 1. Entitlement to service connection for a chronic respiratory disability, variously claimed as to bronchiectasis, chronic obstructive pulmonary disease (COPD), and asthma, to include as due to herbicide exposure. 2. Entitlement to service connection for a lung disability, variously claimed as lung mass and malignant neoplasm of the lung, to include as due to herbicide exposure. 3. Entitlement to an increased disability evaluation for bilateral hearing loss disability in excess of 10 percent prior to November 5, 2020. 4. Entitlement to an increased disability evaluation for bilateral hearing loss disability in excess of 90 percent from November 5, 2020. ORDER Entitlement to an increased disability evaluation for bilateral hearing loss disability in excess of 10 percent prior to November 5, 2020 is denied. Entitlement to an increased disability evaluation for bilateral hearing loss disability in excess of 90 percent from November 5, 2020 is denied. REMANDED Entitlement to service connection for a chronic respiratory disability, variously claimed as to bronchiectasis, chronic obstructive pulmonary disease (COPD), and asthma, to include as due to herbicide exposure is remanded. Entitlement to service connection for a lung disability, variously claimed as lung mass and malignant neoplasm of the lung, to include as due to herbicide exposure is remanded. FINDINGS OF FACT 1. Prior to November 5, 2020, the Veteran demonstrated at worst, level II sensorineural hearing loss in the right ear, and level VII in the left ear. 2. From November 5, 2020, the Veteran demonstrated at worst, level X sensorineural hearing loss in the right ear, and level XI in the left ear. CONCLUSIONS OF LAW 1. Prior to November 5, 2020, the criteria for a disability evaluation in excess of 10 percent for bilateral hearing loss disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2018). 2. From November 5, 2020, the criteria for a disability evaluation in excess of 10 percent for bilateral hearing loss disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1953 to June 1973. This matter is before the Board of Veterans Appeals (Board) on appeal from a February 2017 Rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, a December 2011 Rating decision and later February 2018 Statement of the Case (SOC) show that VA has conceded exposure to herbicides based on service in the Republic of Vietnam. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2019. A copy of the hearing transcript has been associated with the claims file. The Veteran referenced and then submitted additional evidence at the hearing. He waived RO review. Next, the Board observes that a November 2019 Rating decision granted several increased rating claims, continued others, and denied a total disability rating based on individual unemployability (TDIU) as moot. The Board observes that the Veteran is currently in receipt of a total schedular rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues were previously remanded by the Board in December 2019 for additional development. Recently, a November 2020 Rating decision granted an increased, 90 percent disability evaluation for bilateral hearing loss disability effective November 5, 2020. The Rating decision concludes, “This rating decision represents a full and final determination of this issue on appeal. As such, this issue is considered resolved in full.” As a threshold matter, on October 5, 2016 VA received a completed VA Form 21-526EZ from the Veteran, wherein he claimed that service connection is warranted for an, “Agent Orange related lung condition.” The RO attempted clarification of what lung condition the Veteran is claiming via a telephone call on November 9, 2016. The Veteran stated that he was claiming service connection for a lung mass. He also made mention of a respiratory condition called bronchiectasis. In a VA Form 21-526EZ received on December 16, 2016, the Veteran specifically claimed service connection for bronchiectasis. The issues are coded separately in VA’s VATAS system because of the possibility of two distinct disabilities. One claim is for respiratory impairment such as bronchiectasis, and another is for a lung mass. These are distinct Diagnostic Codes (DCs), with potentially separate etiologies. Private treatment records from Dr. J. K. K. at Clarksville Pulmonary received in February 2020 show impressions of both bronchiectasis and a malignant neoplasm of the lung. Therefore, to afford the Veteran the maximum benefit, and for clarity of adjudication, we have listed these claims separately on the title page. There is no prejudice to the Veteran in this regard. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). In a January 8, 2021 Informal Hearing Presentation (IHP), the Veteran through his representative raises concerns regarding the adequacy of the May 2020 VA examination that covered the respiratory and lung mass claims. These are discussed in the Remand section below. The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating 1. Entitlement to an increased disability evaluation for bilateral hearing loss disability in excess of 10 percent prior to November 5, 2020 2. Entitlement to an increased disability evaluation for bilateral hearing loss disability in excess of 90 percent from November 5, 2020 The Board incorporates its discussion from the sections above by reference. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability rating has been previously staged. The same stages and their respective ratings are still warranted. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Id. Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See 38 C.F.R. § 4.85. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies of: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86 (a), (b). The Veteran contends that he is entitled to an increased disability evaluation for bilateral hearing loss disability in excess of 10 percent prior to November 5, 2020, and 90 percent thereafter. By way of background, in December 2016, the Veteran filed his increased rating claim for bilateral hearing loss disability. Next, in January 2017, the Veteran was afforded a VA audiometric examination. The VA examiner reviewed the entire claims file, and commented: The C-file was reviewed electronically through VBMS/Virtual VA. SMRs are a matter of record as the Veteran is already service connected for hearing loss and tinnitus. This Veteran has been seen previously in the VA Audiology clinic. Today’s results show an improvement in hearing at 8000Hz in the right ear but are otherwise essentially unchanged from results obtained on 2/18/14. In January 2017, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follow: HERTZ 1000 2000 3000 4000 Average RIGHT 45 65 70 80 65 LEFT 75 105 100 105 96 The average decibel loss is 65 in the right ear. The average decibel loss is 96 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 72 percent in the left ear. The Board has considered the data obtained from the three available frequencies and their related puretone averages. From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is derived for the right ear and Roman Numeral VII for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column. A 10 percent evaluation is derived from Table VII by intersecting row II, the right ear, with column VII, the left ear. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. Later, at the October 2019 hearing, the Veteran testified, “My left ear has gotten worse.” See October 2019 Hearing Transcript, p. 8. His representative highlighted that he believes that an increased rating is warranted. They referenced a recent audiometric examination that showed a worsening, “but the information looked to be in a different format than the standard C&P format. Although, the information --they did do the same testing, but they didn’t write it up the same way.” Id. In December 2019, the Board remanded the issue for additional development. Significantly, on November 5, 2020, there was evidence of a change. This was the date the Veteran was afforded a new VA audiometric examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follow: HERTZ 1000 2000 3000 4000 Average RIGHT 70 95 100+ 100+ 91 LEFT 90 90 100+ 100+ 95 The average decibel loss is 91 in the right ear. The average decibel loss is 95 in the left ear. Speech audiometry revealed speech recognition ability of 36 percent in the right ear and of 18 percent in the left ear. The VA examiner indicated that use of speech discrimination score is appropriate for this Veteran. The VA examiner also provided remarks: Veteran has a great deal of difficulty understanding words and communicating in a variety of situations. He has two service-connected hearing aids. He has to ask people to repeat what they say many times over. Daily life impacts: Veteran feels frustrated with hearing loss. He has to have the TV volume raised louder than normal and feels isolated from other people because of his hearing loss. Work activities affected: na The Board has considered the data obtained from the three available frequencies and their related puretone averages. From Table VI of 38 C.F.R. § 4.85, Roman Numeral X is derived for the right ear and Roman Numeral XI for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column. A 90 percent evaluation is derived from Table VII by intersecting row X, the right ear, with column XI, the left ear. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. Application of these findings to Table VII corresponds to a 90 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. Next, the Veteran and his representative submitted a January 2020 IHP. For this issue, it reads, “The American Legion has nothing further in the way of evidence or substantive argument to present with respect to this appeal.” The Veteran contends that he is entitled to an increased disability evaluation for bilateral hearing loss disability in excess of 10 percent prior to November 5, 2020, and 90 percent thereafter. The Veteran is competent to report difficulty hearing and ringing in his ears. The Board finds these reports credible. The Veteran is competent to provide evidence of that which he experiences, including a history of noise exposure. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, there are impressions or diagnoses of hearing loss. The Veteran is competent to relate such facts. Nevertheless, the Veteran’s lay contentions regarding the severity of bilateral hearing loss disability are outweighed by the more probative, objective medical evidence. The Board finds the results of the VA audiological examinations described above to be the most probative evidence of record. VA recognizes the Veteran’s belief that he is entitled to increased ratings for bilateral hearing loss disability. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. These findings demonstrate that a 10 percent rating is warranted prior to November 5, 2020 and 90 percent rating thereafter. The same stages are also warranted based upon objective criteria showing evidence of a change. This criteria measures hearing acuity directly in a controlled laboratory environment. There are no probative objective audiometric evaluations to the contrary. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The Veteran has not asserted otherwise, including in the recent IHP. Consequently, an increased disability evaluation for bilateral hearing loss disability in excess of 10 percent prior to November 5, 2020, and 90 percent thereafter is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board regrets any possible delay, a remand is necessary in light of the Veteran’s representative’s explicit request in the January 2021 Informal Hearing Presentation (IHP). This will ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a chronic respiratory disability, variously claimed as to bronchiectasis, chronic obstructive pulmonary disease (COPD), and asthma, to include as due to herbicide exposure is remanded. 2. Entitlement to service connection for a lung disability, variously claimed as lung mass and malignant neoplasm of the lung, to include as due to herbicide exposure is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran contends that he is entitled to service connection for a chronic respiratory disorder; to include bronchiectasis, chronic obstructive pulmonary disease (COPD), asthma; and a lung mass; both as due to herbicide exposure. Specifically, he avers that although he has a smoking history, his recurrent, chronic respiratory condition and lung mass cannot solely be explained on the basis of a prior smoking history. To establish service connection a Veteran must generally show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). We note that bronchiectasis is a chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as “chronic.” See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and (B) each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and while so serving was exposed to that herbicide agent, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service. 38 U.S.C. § 1116 (a)(1). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). Exposure to herbicide agents has been conceded. The Board observes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). By way of background, the Service Treatment Records (STRs) include an October 1972 Report of Medical Examination from retirement. It disclosed a clinically normal evaluation of the lungs and chest. In the contemporaneous Report of Medical History, he denied chronic cough, coughed up blood, shortness of breath, and pain or pressure in chest. He described his health as “Good.” Decades later, the Veteran filed October 2016 and December 2016 service connection claims for a lung disability due to Agent Orange exposure and later for bronchiectasis. The following year, the Veteran filed a timely Notice of Disagreement (NOD) for both issues currently on appeal, received by VA in July 2017. He wrote, “Agent Orange x-ray of chest,” and “Hearing. Test. 7-11-17.” Next, the Veteran perfected his appeals in February 2018. He wrote, “My lung problem is unlike normal lung conditions. I feel it was caused by Agent Orange. I was rated 20% for my hearing by the Corps of Engineers and I feel the VA is wrong to give me 10% for my hearing loss.” In February 2019, VA received an October 19, 2018 Respiratory Conditions Disability Benefits Questionnaire (DBQ) submitted by the Veteran and completed by Dr. J. K. K. It shows a diagnostic impression of asthma from November 2012, COPD from November 2012, and chronic bronchitis from 2012. For other diagnoses, it shows bronchiectasis, with a date of diagnosis of November 3, 2014. In short, there was evidence of respiratory disability. The issue remained a nexus. Importantly, a related October 4, 2019 private medical opinion from Dr. J. K. K. at Clarksville Pulmonary and Critical Care is also of record. It shows in total: Mr. [Veteran] is a patient seen in our office since November 11, 2012 for Asthma, Bronchiectasis and recurrent lower respiratory tract infections. He does have moderately advanced COPD and scarring in his lungs. Although, there is a 30 pack year smoking history, it is remote. The frequency with which he has had recurrent lower respiratory infections, bronchiectasis and pulmonary scarring can not solely be explained on the basis of prior smoking history. Patient gives history of extensive exposure to agent orange while being stationed in Vietnam. It is likely that this may have caused recurrent respiratory issues he has faced over last many years. Any questions or concerns please do not hesitate to contact my office. Related private treatment records are attached. They show ongoing complaints of and treatment for shortness of breath when walking, along with other symptoms. They show that he has COPD, bronchitis, and asthma. He quit smoking in 1988. Imaging from October 1, 2018 revealed an impression of, “Chronic right lower lobe infiltrate but no new findings.” Shortly thereafter, at the October 2019 hearing, the Veteran testified regarding his exposure to Agent Orange while serving in the Republic of Vietnam. He believes this contributed to his claimed lung and respiratory disabilities. Regarding his current impairment, he testified, “Well, I’m continually on antibiotics. Right now, I’m on them. About -- if I go a month without them, I’m lucky. I’m either on antibiotics or steroids most of the time, and my breathing -- I can’t do anything strenuous. I can walk a half a block and I’m completely out of breath. I can’t do any, as far as labor or anything around the house. It’s hard to do anything, so.” See October 2019 Hearing Transcript, p. 4. The Veteran and his spouse testified that his pulmonologist identified a mass in his lung years ago, around 2000. The pulmonologist first was not familiar with Agent Orange, but after doing some research, rendered a positive nexus opinion. Id. at p 5. The Veteran acknowledged his smoking history from an early age, through 1969, and then for 20 or 25 years. He was never a heavy smoker. Id. at p 6. He quit in 1988. Regarding Agent Orange exposure in service, he described, “I was stationed at the base that stored it, and we had to store it in our storage and I handled it every day, in and out. I’ve loaded it, unloaded off the aircraft.” He testified that he had more exposure than most people. In the December 2019 Remand, the Board took notice that the Veteran contends that his respiratory and lung conditions are related to Agent Orange exposure in service. Regarding any presumption for Agent Orange, we are bound by the governing regulations for the specific diseases presumptively associated with herbicide exposure in 38 C.F.R. § 3.309 (e). It is not clear if the Veteran currently has lung cancer. The regulations are clear, “(ii) The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.” 38 C.F.R. § 3.307 (a)(6)(ii). Therefore, with respect to a theory of presumptive service connection as due to herbicide exposure, the Board noted that there is not a conclusive diagnostic impression of lung cancer at this time, and so this presumption is not currently applicable. 38 C.F.R. § 3.309 (e). In addition, regarding direct service connection under Combee, the October 2019 private medical opinion from Dr. J. K. K. is phrased in terms of, “It is likely that this may have caused recurrent respiratory issues.” It is not conclusive. The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 Caselaw Caution (1992) (“may or may not” language by physician is too speculative). Further, although there is both evidence of Agent Orange exposure and eventual smoking cessation, there is also a 30-year history of smoking. The medical opinion does not fully address and reconcile this history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Following the December 2019 Board Remand, the Veteran was afforded a May 2020 VA respiratory conditions examination with Disability Benefits Questionnaire (DBQ). The VA examiner rendered negative nexus opinions for the diagnosed conditions of bronchiectasis, asthma, chronic obstructive pulmonary disease (COPD), and chronic bronchitis. Significantly, in the 2020 Informal Hearing Presentation (IHP), the Veteran through his representative raises key evidentiary issues. The representative essentially challenges the adequacy of the recent VA medical opinion. The IHP reads in part: The VA examiner should specifically provide an etiology opinion for direct service connection that includes a consideration of conceded exposure to Agent Orange. The American Legion argues that the examiner merely provided exerts from medical treaties that provided the causes of each diagnosed disability. This is not providing an etiology opinion for direct service connection of conceded exposure to Agent Orange. The Veteran through his representative concludes, “The American Legion respectfully requests the Board remand this claim to the RO for compliance with the remand instructions and preferably obtain a new medical examination and opinion by a different provider.” The following month, private treatment records from Dr. J. K. K. at Clarksville Pulmonary received in February 2020 show separate impressions of bronchiectasis and a history of a malignant neoplasm of the lung. The Board finds the arguments in the IHP to be persuasive to the extent that additional medical opinions are necessary. Indeed, the Board observes that compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner must consider all theories of service connection for any diagnosed respiratory and/or lung disability, including a direct relationship to conceded Agent Orange exposure. See Combee, supra. Pursuant to the Veteran’s representative’s request, the VA examination should be conducted by a different examiner than J. C., who completed the May 2020 VA examination. Therefore, a remand for a supplemental VA examination with medical opinion is warranted. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory and/or lung disability with a different examiner than J. C., who completed the May 2020 VA examination. The claims file should be made available to the VA examiner for review and the examiner’s report should reflect that the review was conducted. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. Importantly, the VA examiner should provide a distinct etiology opinion for direct service connection for any diagnosed respiratory and/or lung disability that includes a consideration of conceded exposure to Agent Orange. See Combee, supra. The VA examiner should comment on the positive October 4, 2019 private medical opinion from Dr. J. K. K. The examiner should provide a rationale for all opinions expressed. Attention is invited to the Veteran’s theory of entitlement advanced in the January 2020 Informal Hearing Presentation (IHP). 3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.