Citation Nr: 1010109 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 08-16 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a chest/lung disorder, to include chronic obstructive pulmonary disease (COPD), asthma, and bronchitis, including as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1966 and from April 1966 to May 1972, including service in the Republic of Vietnam from September 1965 to March 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the above claim. In December 2009, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. The Board notes that the Veteran initially filed a claim for service connection for severe bronchitis and COPD. A review of the record reveals that the Veteran's chest and lung symptomatology has been diagnosed as COPD, asthma, and upper respiratory infection. In this regard, the Board notes that a claim for service connection is not limited solely to the Veteran's lay hypothesis as to a diagnosis; rather, the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet.App. 1, 5-6 (2009); Brokowski v. Shinseki, 23 Vet.App. 79 (2009). Accordingly, a de novo review by the RO of the issue of service connection for a chest/lung disorder, to include COPD, asthma, and bronchitis, is warranted, and the issue has been re-characterized as noted on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that service connection for his currently diagnosed COPD is warranted. Specifically, he asserts that he developed this condition as a result of exposure to Agent Orange during his service in Vietnam. In support of this contention, the Veteran has submitted photographs that he took during service to show that he was on the ground in Vietnam when Agent Orange was being sprayed. The Veteran has also submitted an internet article entitled "Health status of Army Corps Vietnam Veterans who sprayed defoliant in Vietnam," which indicates that the odds ratio for developing chronic respiratory disease was significantly elevated for those Vietnam Veterans who sprayed herbicides during service. Finally, the Veteran has reported that, while he did not seek medical treatment for his chest/lung problem during service, he did have less stamina once he returned from Vietnam in 1966, indicating that he could no longer "keep up" with his fellow service members. See December 2009 hearing transcript. The Veteran's personnel records confirm that he served in the Republic of Vietnam from September 1965 to March 1966. Service treatment records reveal that the Veteran was noted to have a normal chest and lungs at his entrance examination in March 1952. After his return from Vietnam in March 1966, the Veteran remained in the service and was treated for a cough in December 1968, and upper respiratory infections in October 1970, June 1971, and January 1972. However, at his October 1971 retirement examination, the Veteran was again noted to have a normal chest and lungs. Post service, the Veteran was first diagnosed with COPD in April of 2005, when he sought treatment at A+ Pulmonary Center. At that time, Dr. Christopher Bressler indicated that the Veteran had severe dyspnea related to his COPD, and reported that pulmonary function tests showed severe obstruction. Following this initial assessment, the Veteran received regular follow-up treatment for his COPD and acute exacerbations of his COPD at the A+ Pulmonary Center through December 2006. Additionally, in April 2006, the Veteran underwent a VA Agent Orange registry examination. At the outset, the examiner noted that the Veteran served in Vietnam from 1965 to 1966 as an aerial resupply specialist. The examiner also noted that the Veteran's current medical problems included COPD, which had first been diagnosed about a year earlier, and for which he was receiving private treatment. The examiner reported that the Veteran had a history of tobacco use (approximately 15 to 20 cigarettes a day), but had quit 10 years earlier. Based on her examination, the examiner diagnosed the Veteran with COPD. In June 2006, the Veteran began treatment for his COPD with Dr. John N. Glover. At his initial examination, Dr. Glover took a history of this condition from the Veteran, noting that he was a reformed smoker with a history of military service in Vietnam, where he was exposed to Agent Orange. He also noted the Veteran's report that, over the past two years, he had developed coughing, wheezing, and dyspnea. Based on his examination, Dr. Glover diagnosed the Veteran with obstructive lung disease, noting that May 2006 x-ray results were consistent with COPD or asthma. The Veteran has since received regular treatment from Dr. Glover for his COPD and asthma. Significantly, in July 2006, Dr. Glover reported that the Veteran's COPD with an asthmatic component could be due, in part, to prior smoking and could possibly be due, in part, to Agent Orange exposure. Finally, in January 2008, the Veteran sought emergency room treatment for an acute exacerbation of his COPD with an upper respiratory infection at the Sun Health Boswell Hospital. To date, however, the Veteran has not been provided with a VA medical examination assessing the etiology of his COPD. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is obliged to provide a medical examination and/or get a medical opinion when the record contains competent evidence that the claimant has a current disability; the record indicates that the disability, or signs and symptoms of disability, may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the evidence of record indicates that the Veteran was exposed to herbicides during service, was treated for upper respiratory infections on several occasions during service, and has subsequently developed COPD and asthma. Moreover, the Veteran's private physician, Dr. Glover has indicated that the Veteran's COPD may be due, in part, to his Agent Orange exposure during service. Therefore, the Board finds that a medical opinion regarding the etiology of the Veteran's chest/lung disorder is necessary in order to make a determination in this case. The Veteran also has indicated that there are outstanding employment records that may support his claim, including records from Lockheed Aircraft Services, dated from May 1976 to November 1981; Lockheed Aircraft International, dated from November 1981 to February 1985; and Boeing Aircraft, dated from September 1986 to October 1993. An attempt to obtain any medical records pertaining to this employment should be made on remand. In this regard, the Board notes that the Veteran has reported that he attempted to obtain these records on his own, but did not receive a response from any of his prior employers; he has also indicated that he does not have a current address for any of his prior employers for submitting a records request. As this case is being remanded for the foregoing reasons, all relevant private and VA treatment records should also be obtained on remand. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Obtain a complete copy of the Veteran's treatment records for COPD and asthma from the Phoenix, Arizona, VA Medical Center, dated since April 2006. 2. Make arrangements to obtain the Veteran's treatment records from the A+ Pulmonary Center, dated from December 2006 to present. 3. Make arrangements to obtain the Veteran's treatment records from Dr. John N. Glover, dated from July 2009 to present. 4. Make arrangements to obtain copies of any medical records pertaining to the Veteran's employment at Lockheed Aircraft services, dated from May 1976 to November 1981; Lockheed Aircraft International, dated from November 1981 to February 1985; and Boeing Aircraft, dated from September 1986 to October 1993. 5. Schedule the Veteran for an appropriate VA examination of his chest and lungs. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed chest and/or lung condition, including COPD, asthma, and chronic bronchitis, had its onset during active service or is related to any in- service disease or injury, including exposure to Agent Orange. In doing so, the examiner should acknowledge the Veteran's complaints of having less stamina upon his return from Vietnam in March 1966, and the findings reported in the article that the Veteran submitted regarding the elevated likelihood of Vietnam Veterans who sprayed herbicides subsequently developing chronic respiratory disease. The examiner should also discuss the significance, if any, of the Veteran's in-service treatment for upper respiratory infections following his return from Vietnam. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 6. Finally, readjudicate the Veteran's claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).