Citation Nr: 22019747 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 14-43 545 DATE: April 2, 2022 REMANDED Entitlement to service connection for lung disability, to include chronic obstructive pulmonary disease (COPD) and restrictive lung disease to include as due to herbicide exposure on a substitution basis, is remanded. Entitlement to service connection for esophageal cancer, to include as due to herbicide exposure on a substitution basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to March 1968. He died in August 2014. His widow is the appellant and substituted as a claimant. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the appellant testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In May 2018 and June 2020, the Board remanded the claims on appeal for evidentiary development. The Veteran's claims folder returned to the Board, and in January 2021, the Board denied the appellant's claims. The appellant appealed the Board's denial of these issues to the United States Court of Appeals for Veterans Claims (Court). In July 2021, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMR). An Order of the Court dated August 2021 granted the motion, vacated the Board's January 2021 decision, and remanded the case to the Board. Lung disability and Esophageal cancer The parties to the JMR noted that vacatur and remand of the Board's January 2021 decision was warranted as the Board erred when it did not ensure substantial compliance with the May 2018 Board remand instructions in relation to the lung disability and esophageal cancer claims. In the May 2018 remand, the Board ordered opinions to determine whether the Veteran's lung disability and esophageal cancer were related to service and directed that the opinions, "must support the conclusion(s) reached and provide a reasoned medical explanation connecting the conclusion(s) and supporting data. In reaching his/her conclusion(s), the clinician should consider the [positive] medical opinion[s]" and treatise evidence. Medical opinions were thereafter obtained in December 2019. However, the parties agreed that the December 2019 examiner's opinions did not contain "a reasoned medical explanation connecting the conclusion(s) and supporting data," nor did it appear that the examiner considered the medical evidence cited in the remand directives. As a result, the parties agreed that the Board erred in failing to ensure that VA substantially complied with the May 2018 Board remand instructions. Thus, the parties agreed that remand was warranted for the Board to obtain new VA opinions on the lung disability and esophageal cancer that adequately comply with the May 2018 Board remand directives. Based on the foregoing, the Board finds that remand is warranted for medical opinions to be obtained as to the etiology of the Veteran's lung disability and esophageal cancer. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriately qualified clinician to determine whether the lung disorder was at least as likely as not related to in-service herbicide exposure. The medical opinion must support the conclusion(s) reached and provide a reasoned medical explanation connecting the conclusion(s) and supporting data. In reaching his/her conclusion(s), the clinician should consider the June 2011 medical opinion from Dr. D.H., which reflects that the Veteran was diagnosed with COPD and that it is associated with Agent Orange exposure, along with the treatise evidence (i.e. the Zumwalt Report) submitted in August 2015. If the examiner finds the Zumwalt Report insufficient, an explanation as to why should be provided. It would be helpful if the examiner reviewed the December 2019 VA opinion and specifically addressed the circumstances of the Veteran's lung condition, including whether he was a smoker and the impact, if any, that has on the conclusion reached. If an opinion cannot be expressed without resort to speculation, the clinician should so indicate and discuss 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. 2. Obtain a medical opinion from an appropriately skilled clinician to determine whether the Veteran's esophageal cancer was at least as likely as not related to in-service herbicide exposure. The medical opinion must support the conclusion(s) reached and provide a reasoned medical explanation connecting the conclusion(s) and supporting data. In reaching his/her conclusion(s), the clinician should consider the medical opinion of Dr. K.D. from the August 2015 Board hearing, which links esophageal cancer to in-service Agent Orange exposure, along with the treatise evidence (i.e. the Zumwalt Report) submitted in August 2015. If the examiner finds the Zumwalt Report insufficient, an explanation as to why should be provided. (Continued on the next page) It would be helpful if the examiner reviewed the December 2019 VA opinion and specifically addressed the circumstances of the Veteran's esophageal condition, including whether he was a smoker and/or recurrent alcohol user, and the impact, if any, that has on the conclusion reached. If an opinion cannot be expressed without resort to speculation, the clinician should so indicate and discuss 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. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Kamal, 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.