Citation Nr: 22016869 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-54 450 DATE: March 23, 2022 REMANDED Entitlement to service connection for a respiratory disorder (initially claimed as chronic obstructive pulmonary disorder [COPD]) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1981 to December 1984. This claim comes before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection - COPD By way of background, the Veteran has continuously asserted that his COPD should be granted service connection as attributable to active duty service at Camp Lejeune, North Carolina. The Board acknowledges that the Veteran was stationed there; however, the Veteran has no current diagnosis of any disability listed in 38 C.F.R. § 3.309(f), see also 38 C.F.R. § 3.307(a)(7), and no such claim for service connection is on appeal at this time. Nonetheless, the claim was remanded on April 5, 2019, so that the Veteran could submit to a VA examination and so that an etiological opinion could be procured as to direct service connection. See 38 C.F.R. § 3.303; BVA Remand (Apr. 5, 2019); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner from the subsequent examination offered a negative etiological opinion on November 5, 2019, in which the examiner stated that "I could find no service-related treatments for his claimed COPD diagnosis." See C&P Exam ( Nov. 5, 2019 ), at "Medical Opinion." Even though there is no contrary positive etiological opinion currently of record, the Board cannot appropriately weigh or assign any probative weight to this conclusion, because it is merely conclusory. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion"). Additionally, the opinion appears to be wholly based upon an absence of evidence of in-service treatment. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Finally, the Board notes that the Veteran's service treatment records are replete with notations of the Veteran being overweight and requiring "weight control." See, e.g.: Military Personnel Records (rec'd July 15, 2015 ), at Pages 99 through 105. The Board concludes that a remand is warranted to consider the relevance or lack thereof of these notations, in the event that a respiratory disorder could originate from being above acceptable weight criteria. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file to the November 2019 examiner and obtain an addendum opinion as to the etiology of his claimed respiratory disorder, to include an already diagnosed COPD. If the November 2019 examiner is unavailable, then obtain an addendum opinion from a similarly qualified VA examiner. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for an in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (a.) Identify all current respiratory disorder(s) that have been present at any time since July 2015. If COPD is no longer an applicable diagnosis, then such a negative finding must be specifically reconciled with previous diagnosis as conceded in the October 2015 rating decision. (b.) Is it at least as likely as not (more than 50 percent probability) that the Veteran's respiratory disorder began in service, was caused by service, or is otherwise related to service? By way of background, a November 2019 etiological opinion concluded that "[the examiner] could find no service-related treatments for his claimed COPD diagnosis," but offered no rationale for this conclusion. A statement addressing the relevance or lack thereof of the Veteran's documented in-service "weight control" for weight in excess of acceptable criteria for active duty service, as may be in relation to the claim for service connection for a respiratory disorder. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.