Citation Nr: 21030680 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-14 795 DATE: May 19, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include chronic bronchitis and chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicide agents, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously denied by the Board in a February 2019 decision. The Veteran appealed the Board's February 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an Order in February 2020 granting a February 2020 Joint Motion for Partial Remand (JMPR). The Court's Order set aside the February 2019 decision and remanded the issue for action consistent with the terms of the JMPR. In August 2020, pursuant to the terms of the JMPR, the Board remanded the claim in order to afford the Veteran with a VA respiratory examination. The Veteran has received several respiratory disorder diagnoses. To ensure that all potential respiratory disorders are contemplated, the Board has recharacterized the issue on appeal. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to service connection for a respiratory disability, to include chronic bronchitis and COPD, to include as due to exposure to herbicide agents, to include as secondary to service-connected disabilities While the Board regrets additional delay, a remand is needed for additional development. This is necessary to ensure that there is a complete record upon which to decide the Veteran's appeal and that he is afforded every possible consideration. The Veteran contends that his respiratory disability is due to his active duty service, to include as due to exposure to herbicide agents, or alternatively, is due to his service-connected disabilities. In the August 2020 remand, the Board requested the examiner to opine whether the Veteran's chronic bronchitis was caused by or aggravated by his service-connected COPD. However, the Veteran is not service connected for COPD, or any respiratory disorder at this time. The Veteran is currently service connected for non-obstructive coronary artery disease, post-traumatic stress disorder, diabetic retinopathy, diabetes mellitus type II, and bilateral lower extremity diabetic peripheral neuropathy. The Veteran was afforded a VA respiratory examination in February 2021, in connection with which the Veteran was diagnosed with chronic bronchitis and COPD. The February 2021 VA opinions focused almost entirely on the examiner's opinion that chronic bronchitis and COPD are the same disease, despite diagnosing the Veteran with both disabilities. The February 2021 examination and opinions are based on the inaccurate factual premise that the Veteran is service connected for COPD. The examiner made no mention of any other service-connected disability and thus offered no opinions other than relating the Veteran's chronic bronchitis to COPD. Additionally, the Board notes that on the Veteran's March 1996 entrance report of medical history, the Veteran marked "Yes" for asthma and the Veteran's service treatment records show a January 1967 notation that "this man has bronchitis." However, the February 2021 VA examiner did not offer a direct service connection opinion. For the reasons above, the Board finds that a remand for another VA medical opinion based on a correct factual premise is needed. The matter is REMANDED for the following action: 1. Forward the claims file to an appropriate examiner to provide an etiology opinion regarding the Veteran's claimed respiratory disability. The claims file, to include a copy of this Remand, must be made available to, and reviewed by, the examiner. The examiner should note such review was conducted. If it is deemed necessary by the examiner, schedule the Veteran for a VA examination. If an examination is conducted, the examiner should obtain a detailed clinical history of the Veteran, and obtain any additional relevant information from the Veteran. For each diagnosed respiratory disability, the examiner is requested to address the following: (A) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's respiratory disability had its onset during military service, or was caused or aggravated by military service, or is otherwise related to, the Veteran's military service, to include acknowledged exposure to herbicide agents, and to include the normal March 1966 entrance clinical examination, although the Veteran marked "Yes" for asthma on the report of medical history, and the in-service complaints of heavy breathing and that the Veteran's "lungs feel full" in May 1966, and bronchitis in January 1967. (B) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's respiratory disability was caused or aggravated by any of his service-connected disabilities. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the respiratory disability prior to aggravation by the service-connected disability. For every opinion given, a complete rationale and medical reasoning behind the conclusion must be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.