Citation Nr: 1328167 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 12-24 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease with pulmonary fibrosis, claimed as a lung condition, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for chronic obstructive pulmonary disease with pulmonary fibrosis, claimed as a lung condition. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 In March 2013, the Board obtained a VHA opinion with regard to the etiology of the Veteran's lung disease. The examiner concluded that the Veteran's lung disease was less likely than not related to herbicide exposure in service because there was no literature to support a causal relationship between the Veteran's idiopathic pulmonary fibrosis and Agent Orange exposure, rather, it was likely that his lung disease was due to his former smoking history. The opinion comports with a February 2011 VA opinion in that the 2011 VA examiner also found that the Veteran's chronic obstructive pulmonary disease with pulmonary fibrosis was as likely as not caused by or a result of his chronic tobacco use. However, of record are opinions from the Veteran's private physician which state that his lung disease was caused by Agent Orange exposure. These opinions are not accompanied by any rationale. In May 2013, the Veteran submitted a response to the March 2013 VHA opinion, stating that his treating physician, Dr. G., has related his lung disease to Agent Orange exposure and requesting that the claim be remanded to the RO for further consideration. The Veteran indicated that any questions should be directed to Dr. G. In a June 2013 written argument, the Veteran's representative waived RO consideration of any recently submitted evidence, but made no reference to the Veteran's request for remand. Thus, in light of the Veteran's specific instruction that he did not waive RO consideration of the evidence, the Board must remand the claim for RO adjudication in the first instance. As such, the opportunity should be provided to the Veteran to submit additional records or opinions. 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) (2012). Expedited handling is requested.) 1. Provide the Veteran with the opportunity to submit any additional records in support of his claim, to include obtaining an additional opinion and rationale from his private physician, Dr. G., as to the etiology of his lung disease. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 that are 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. 2012). _________________________________________________ M. E. LARKIN 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).