Citation Nr: 21042044 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 09-24 563 DATE: July 11, 2021 REMANDED Entitlement to service connection for chronic bronchitis is remanded. Entitlement to service connection for chronic asthma is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1965 to July 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 and December 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. In a February 2015 decision, the Board consolidated the Veteran's claims into a single claim for a lung disorder and remanded the appeal for evidentiary development. In August 2017, the Board requested a medical opinion from a subject matter expert (a pulmonologist employed by the Veterans Health Administration (VHA), hereinafter referred to as the VHA expert), to assess the potential relationship between the Veteran's respiratory disorders and service. The opinion was rendered in November 2017, and per the Board's subsequent clarification request, an addendum thereto was furnished in March 2018. The Veteran was then provided with copies of the VHA expert's opinions and responded that he had no further related evidence or argument to submit. In May 2018 and most recently in May 2020, the Board remanded the appeal again for further development. Unfortunately, another remand is required. Pursuant to the Board's May 2020 remand directives, an addendum opinion was rendered. The VA examiner opined that the Veteran's asthma and bronchitis clearly and unmistakably preexisted his military service and were clearly and unmistakably not aggravated by such service. However, in her rationale, the examiner stated that there is conflicting evidence as to whether his condition preexisted service, although there is no evidence to support aggravation. Thus, resolving reasonable doubt in the Veteran's favor, this opinion does not meet the onerous burden of "clear and unmistakable evidence," and turns the claim into one for direct service connection. In the Board's May 2020 remand directives, the Board asked the examiner to address: if either disability did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, then is it at least as likely as not (50 percent or greater probability) that such disability had its onset during service, or is otherwise related to service, to include: (i) presumed in-service herbicide agent exposure; and/or (ii) in-service exposure to burning human waste. However, in rendering a negative opinion, the examiner failed to address whether the Veteran's respiratory disorders were due to presumed in-service herbicide agent exposure and/or in-service exposure to burning human waste, as specifically requested by the Board. Thus, for this reason, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's May 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the February 2020 and January 2021 examiners, preferably a physician, to address the etiology of the Veteran's respiratory disabilities. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should respond to the following: (a) Is it at least as likely as not (50 percent or greater probability) that chronic asthma, chronic bronchitis, or COPD had its onset during service, or is otherwise related to service, to include presumed exposure to herbicide agents, burning human waste, and asbestos therein. In addressing this question, please discuss: (i) the October 1966 STRs; (ii) the November 1965 STRs indicating wheezing and diagnosing bronchitis with mild asthmatic component; (iii) presumed in-service herbicide agent exposure; (iv) presumed in-service exposure to burning human waste; and/or (v) presumed in-service exposure to asbestos. Please concede current diagnoses of asthma, bronchitis and COPD, and please presume the Veteran was sound with respect to his respiratory system (e.g., had no pre-existing asthma, COPD or bronchitis) at service entrance. Any opinion premised on a respiratory disability pre-existing the Veteran's service will be returned as inadequate. Additionally, please do not rely on the fact that presumptive service connection is not available for the condition based on his exposure to herbicide agents. Otherwise, the opinion will be rendered inadequate. (b) If the Veteran's chronic asthma or chronic bronchitis is related to service, please also opine whether it is at least as likely as not (50 percent or higher likelihood) that the Veteran's current COPD is (1) proximately due to his service-connected respiratory disorder, or (2) has been aggravated (worsened) beyond its natural progression by this service-connected respiratory disorder. In addressing part (b), the examiner is advised that two separate opinions: one for proximate causation and one for aggravation are necessary for each disorder that is service-connected. Moreover, chronic bronchitis and/or chronic asthma need not be service-connected, or even diagnosed, at the time COPD is incurred and reliance on this will render the opinion inadequate. A complete rationale for all opinions must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.