Citation Nr: 1319741 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-46 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for restless leg syndrome, including as secondary to exposure to herbicides. 2. Entitlement to service connection for asthma, seasonal allergies and allergic rhinitis (claimed as a lung condition, sensitivity and running out of breath), including as secondary to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from February 1969 to September 1970, including service in Korea. These claims come before the Board of Veterans' Appeals (Board) on appeal of August 2009 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Virtual VA paperless claims processing system includes no additional pertinent documents for consideration in support of these claims. These claims are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran claims entitlement to service connection for restless leg syndrome and a lung disorder on the basis that these conditions developed secondary to his in-service herbicide exposure. Prior to adjudicating these claims, additional development is necessary. 38 C.F.R. § 19.9 (2012). A veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing otherwise. 38 C.F.R. § 3.307(a)(6)(iii) (2012). However, the Department of Defense (DOD) has confirmed that the herbicide Agent Orange was used in an area other than the Republic of Vietnam, namely along Korea's Demilitarized Zone (DMZ) from April 1968 through July 1969 for defoliating certain critical areas. The treated area was a strip of land measuring 151 miles in length and 350 yards in width from the fence to north of the civilian control line. The 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was used. According to the Veteran's Report of Separation from the Armed Forces (DD Form 214), the Veteran served on active duty from February 1969 to September 1970, including for one year and two months in Korea as a member of a light armored unit of the 2nd Infantry Division - A Troop, 4th Squadron, 7th Cavalry, 2nd Infantry Division. His service treatment records contain entries from a troop dispensary at that assignment as early as July 1969 and through August 1970 - just prior to his discharge from active duty. Service personnel records are needed to determine whether his service in the DMZ commenced at some point between April 1968 and July 1969, in which case the Veteran's herbicide exposure may be presumed. See M21-1MR, Part IV, Subpart ii, 2.C.10.n. If his exposure to herbicides is confirmed or presumed, medical examinations are required to determine if the Veteran has a respiratory disorder (claimed as asthma, allergies, and allergic rhinitis) and restless leg syndrome as a result of his exposure. He has submitted written opinions from two of his private physicians supporting an alleged relationship between the claimed disabilities at issue in this appeal and his active service. In September 2009, one physician, Jerry R. Peterson, M.D., wrote that the Veteran has asthma and restless leg syndrome, both of which probably worsened as a result of his exposure to Agent Orange during military service. In November 2009, Dr. Peterson wrote that these conditions are as likely as not caused by the Veteran's exposure to Agent Orange during military service. The same month, the other physician, Michael Wexler, M.D., wrote that he treated the Veteran for asthma and allergies, that the Veteran was exposed to Agent Orange in South Korea in 1969 and 1970, and that his exposure conceivably could have played a role in the Veteran's respiratory symptoms. The records upon which Dr. Wexler relied in offering his opinion are not in the claims file and, being pertinent to this appeal, must be secured on remand. Similarly, although there are a few records of the Veteran's treatment by Dr. Peterson in the claims file, they do not include any reference to restless leg syndrome. The Board is thus unclear of the basis for Dr. Peterson's statement that the Veteran has such a condition. It assumes there are other treatment records that are outstanding that too need to be secured in support of this appeal. While the bases of these opinions are unclear, they indicate that if the Veteran was exposed to herbicides, his disabilities may be associated with the Veteran's service. Accordingly, these claims are REMANDED to AMC for the following action: 1. Secure and associate with the claims file the Veteran's service personnel file, to include documentation establishing the time period during which the Veteran served in the DMZ. 2. After obtaining authorization, secure and associate with the claims file the treatment records upon which Drs. Peterson and Wexler relied in offering their opinions in support of the Veteran's claims. 3. If the Veteran's exposure to herbicides is presumed by law and once all available service personnel and treatment records have been received, arrange for the Veteran to undergo a VA examination. The purpose of the examination is to determine if the claimed disabilities are related to the Veteran's military service, including any alleged or presumed herbicide exposure. The following considerations will govern the examination: * The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. The examination report must reflect review of the claims folder - to include any evidence associated with the record as a result of this remand. * After reviewing the claims file and taking into account the history of the Veteran's complaints, the examiner must state whether the Veteran has, or had at any point after filing his claim in February 2009, a clinical diagnosis of restless leg syndrome, asthma, seasonal allergies and allergic rhinitis. * The examiner must provide an opinion on whether each diagnosed disorder is the direct result of service, including the alleged or presumed herbicide exposure, or is the result of an in-service aggravation, beyond the natural progression, of any pre-existing condition. * The examiner must provide a full statement of the reasoning behind the conclusions reached, based on his or her clinical experience, medical expertise, and established medical principles. * The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. * If determining in his or her professional medical opinion that an opinion cannot be rendered without resort to speculation, the examiner must so state and explain why. 4. Readjudicate the claims being remanded in light of all of the evidence of record. If either benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. Thereafter, subject to current appellate procedure, return these claims to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ VITO A. CLEMENTI 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) (2012).