Citation Nr: 25008745 Decision Date: 07/02/25 Archive Date: 07/02/25 DOCKET NO. 13-12 595 DATE: July 2, 2025 REMANDED Entitlement to service connection for a respiratory disorder, to include due to herbicide and asbestos exposure or as secondary to hypertension, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Of note, the May 2023 Board decision remanded the claims of service connection for a respiratory disorder and anemia for further development. In an April 2025 rating decision, entitlement to service connection for iron deficiency anemia was granted. Therefore, following the issuance of the April 2025 Supplemental Statement of the Case (SSOC), only the issue of entitlement to service connection for a respiratory disorder has returned to the Board. Entitlement to service connection for a respiratory disorder, to include due to herbicide and asbestos exposure or as secondary to hypertension. The Veteran asserts entitlement to service connection for a respiratory disorder, to include emphysema. Upon a review of the record, the Board finds that a remand is necessary for VA to comply with the May 2023 Board decision, which remanded the claim of service connection for a respiratory disorder for further development. The May 2023 Board decision remanded the claim for a toxic exposure risk activity (TERA) opinion pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). More specifically, the Board instructed VA to obtain an opinion as to whether it was at least as likely as not that there is a nexus between any respiratory disability, to include emphysema, and the Veteran's TERA of conceded herbicide agent exposure and reported asbestos exposure. Additionally, the Board noted that the opinion must address "the synergistic, combined effect of all toxic exposure risk activities of the veteran," which in the instant case means conceded herbicide agent exposure and reported asbestos exposure. See 38 U.S.C. § 1168(a)(2)(B). A March 2025 TERA opinion found that the claimed condition was less likely than not (likelihood was less than approximately balanced or nearly equal) caused by the indicated TERA, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERA of the Veteran. The VA examiner further explained that there was no statistical data or research to support the respiratory condition being secondary to the Veteran's toxic exposures. Specifically, the Veteran is diagnosed with emphysema and claimed asbestos exposure. The VA examiner concluded that the topic needs further study at this time. The Board finds the March 2025 TERA opinion inadequate for adjudication purposes. The VA examiner solely addressed the Veteran's in-service asbestos exposure. In doing so, the VA examiner failed to address the Veteran's herbicide agent exposure as well as the synergistic, combined effect of all TERA of the Veteran. See also March 2025 TERA Memorandum. Therefore, the Board finds that the agency of original jurisdiction (AOJ) did not substantially comply with the May 2023 Board directives and that further medical development is still required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Board remand confers a right on a claimant to compliance with the remand order); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based upon the foregoing, the Board finds that a remand is necessary for VA to comply with the May 2023 Board remand directives and obtain an adequate TERA opinion addressing the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERA of the Veteran. The matters are REMANDED for the following action: Obtain an opinion from a VA clinician that addresses the Veteran's respiratory disorder, to include emphysema. If the clinician determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The claims file, to include a complete copy of this REMAND, must be made available to the clinician. All diagnostic testing deemed to be necessary by the clinician should be accomplished. Applying general medical principles, the clinician's experience, the clinical records, the Veteran's service treatment records, and the Veteran's lay statements, the clinician is instructed to provide opinions responsive to the following: (a) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's respiratory disability was incurred in or caused by toxic exposure in service. In so opining, the clinician is required to consider the synergistic, combined effects of the Veteran's exposure to any and all toxins in service. [The VA clinician must address the March 2025 TERA Memorandum and, more specifically, the conceded exposure to herbicide agents due to service in the offshore waters of Vietnam and asbestos exposure due to the Veteran's military occupational specialty (MOS) of Ship's Serviceman.] The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brostowski, Leyna 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.