Citation Nr: 21008662 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-55 766 DATE: February 17, 2021 REMANDED Entitlement to service connection for a respiratory condition (claimed as asthma and lung condition), to include as due to herbicide exposure, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from November 1971 to August 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019 and July 2020, the Board remanded the case for further development. The issue has returned to the Board for further appellate consideration. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for a respiratory condition (claimed as asthma and lung condition), to include as due to herbicide exposure, is remanded. The Veteran contends that he has a respiratory condition related to his active service. He specifically asserts that his claimed condition is due to in-service herbicide exposure. The Board notes that VA has conceded the Veteran’s exposure to herbicides in service based on his nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. See March 2020 herbicide exposure verification memorandum. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As previously indicated, the issue on appeal was remanded by the Board in May 2019 and July 2020. The issue was initially remanded in May 2019, as the April 2015 VA examiner failed to provide an etiology opinion as to the Veteran’s diagnosed asthma and chronic obstructive pulmonary disease (COPD). Accordingly, in March 2020, VA obtained an addendum medical opinion, which concluded that the Veteran’s respiratory condition was not related to active service or herbicide exposure. As rationale, the examiner indicated that long-term exposure to lung irritants that damage the lungs and the airways usually is the cause of COPD. In July 2020, the Board determined that the examiner failed to provide a complete rationale for the opinion offered. Furthermore, the Board noted that a medical opinion is inadequate when it is unsupported by clinical evidence. See Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board also indicated that the March 2020 examiner failed to acknowledge or address the Veteran’s lay statements that his respiratory condition began in 1972. As a result of the inadequacy of the March 2020 VA addendum opinion, the Board remanded the issue for further development in July 2020. The Veteran was afforded a VA examination for his claimed respiratory condition in October 2020. The examiner provided a diagnosis of COPD. The examiner opined that the Veteran’s respiratory condition was not related to active service or herbicide exposure. As rationale, the examiner noted that the Veteran’s service medical records showed a single entry for chest pain that was treated without recurrence of symptoms. Furthermore, the Veteran’s August 1973 separation examination showed no chronic conditions related to the claimed lung condition. The examiner indicated that the Veteran was not seen for a lung condition for several years following separation from service. Additionally, the examiner stated that COPD is not a condition that medical evidence shows is related to herbicide exposure. The examiner continued by stating that, while there are studies to see if there is a link between COPD and herbicide exposure, the results are still being analyzed and no causal relation has been made at this time. In conclusion, the examiner opined that the Veteran’s one episode of chest pain several years prior to a COPD diagnosis is likely unrelated. The Board finds the October 2020 VA opinion to be inadequate. The July 2020 remand directives instructed the examiner to address the Veteran’s lay statements that his respiratory condition began in 1972. However, the examiner failed to consider and discuss such relevant evidence. As such, the opinion is inadequate because it did not consider all relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Also, the examiner failed to provide a complete rationale for the opinion addressing direct service connection, as he simply based his opinion on the finding that the Veteran only had one episode of chest pain in service. Furthermore, the rationale provided by the examiner with regard to the causal relationship to in-service exposure to herbicides is conclusory. No support was given for the opinions, and no citation to any scientific evidence that was relied upon was provided. An examination is inadequate if it contains only data and conclusions without reasoning and rationale. Nieves-Rodriguez, 22 Vet. App. at 301. Furthermore, the Board notes that the October 2020 VA examiner failed to provide an opinion as to the Veteran’s previously diagnosed asthma. Despite the lack of finding of asthma on the October 2020 VA examination, there was a diagnosis related to such during the appeal period. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the “current disability” requirement for service connection is met if disability is shown at any time during the claims period). Thus, as the October 2020 VA opinion did not cure the defects found in the March 2020 VA opinion, and also, based on the additional deficiencies found in the October 2020 VA opinion, the Board finds that a new VA opinion is warranted. Furthermore, to ensure compliance with the directives of the July 2020 remand, a new VA medical opinion should be obtained, which includes an adequate supporting rationale. See Stegall, 11 Vet. App. at 271. Finally, on remand, the Agency of Original (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, return the claims file to the examiner who performed the October 2020 VA respiratory conditions examination. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the October 2020 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether any diagnosed respiratory condition is at least as likely as not related to an in-service injury, event, or disease. The examiner is asked to specifically address whether any respiratory disability was caused by his conceded in-service exposure to herbicides. The examiner must address all diagnosed respiratory conditions during the claim period. The April 2015 VA examination report notes diagnoses of asthma and COPD. All lay statements describing the Veteran’s symptoms, manifestations, and onset must be fully considered and discussed. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.