Citation Nr: 21010020 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-14 241 DATE: February 23, 2021 REMANDED Entitlement to service connection for respiratory condition, to include asthma and chronic obstructive pulmonary disease (COPD), is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from February 1974 to February 1978. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a March 2016 Form 9, the Veteran limited his appeal to the issue of entitlement to service connection for asthma. A hearing was held in this matter in July 2019 before the undersigned Veterans’ Law Judge (VLJ), wherein it was confirmed that the only matter pending before the Board is entitlement to service connection for asthma. A transcript of the hearing has been associated with the record. The matter was previously remanded by the Board for additional development in August 2019 and has now returned for further appellate review. 1. Entitlement to service connection for respiratory condition, to include asthma and chronic obstructive pulmonary disease (COPD), is remanded. As an initial matter, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the August 2019 Board remand, the Veteran received a VA examination in January 2020 regarding the nature and etiology of his claimed respiratory condition. The examiner was asked to specifically opine on the Veteran’s reports relative to the etiology of his respiratory condition. While the examiner did provide opinions regarding the Veteran’s asserted asbestos exposure and in-service treatment for lung congestion and throat swelling, the examiner failed to provide an opinion regarding the Veteran’s asserted significant exposure to chlorobenzalmalononitrile (CS gas) while engaged as an instructor as requested in the August 2019 Board remand decision. Accordingly, the matter must be remanded for a new medical opinion regarding whether the Veteran’s respiratory condition is etiologically related to exposure to CS gas while on active duty service. The matter is REMANDED for the following action: Obtain an addendum opinion from the VA examiner who authored the January 2020 examination report, if possible. If that examiner is not available, then a similarly qualified examiner may provide the addendum opinion. The claims file and a copy of this remand must be reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory disability is related to alleged chlorobenzalmalononitrile (CS gas) exposure related to military service. The examiner must specifically address the Veteran’s reports relative to the etiology of any diagnosed disability, to include the Veteran’s contention that in 1974 he was engaged as a gas chamber instructor where he had significant exposure to chlorobenzalmalononitrile (CS gas). If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.