Citation Nr: 1328441 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-23 091A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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 Veteran served on active duty with the United States Marine Corps from July 1958 to April 1970, to include tours of duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Atlanta, Georgia, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for COPD. In a September 2012 decision, the Board determined that reopening of the previously denied claim was warranted, and remanded the underlying claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development and adjudication. When the claim was returned to the Board in April 2013, the issue of service connection for COPD was recharacterized as entitlement to service connection for a respiratory disorder claimed as COPD, in recognition of the fact that on a recent VA examination, three separate respiratory conditions were diagnosed. Service connection for pulmonary fibrosis had been granted by the AMC in January 2013, but service connection for the remaining two diagnoses remained at issue. Consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009), a claim for one respiratory condition is considered a claim for all diagnosed conditions, as the Veteran is not competent to distinguish between diagnoses when claiming compensation based on respiratory problems. The Board then remanded the recharacterized claim for additional development. The claim is now returned to the Board. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. 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 Although the Board regrets the additional delay, further remand is required to secure compliance with VA's duty to assist the Veteran in substantiating his claim of service connection for COPD. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In April 2013, the Board remanded the claim for clarification of a January 2013 VA medical opinion regarding a nexus between COPD and the herbicide, asbestos, and petrochemical exposures established as having occurred in service. The examiner had not adequately excluded the possibility that asbestos exposure, as from brake pads as a mechanic, could have caused or contributed to COPD. Additionally, the examiner was asked to clearly opine regarding the possible roles of herbicides and petrochemical exposures in causing COPD. Unfortunately, in addressing the possibility that herbicide played a causative role in a May 2013 addendum, the examiner has understated the Veteran's exposure to such in service. The Veteran has reported one main incident of exposure, when a helicopter spraying Agent Orange was hit and spilled its load of herbicide. The Veteran reports he was soaked in the chemical defoliant at that time, and even swallowed some. The examiner very clearly considered this incident. He stated in May 2013 that based on "the exposure the Veteran described during his [prior] exam," there was no showing of an "ongoing and, thus, substantial risk for COPD development." However, as the Board pointed out in the April 2013 remand, the Veteran has alleged exposure "every day" while serving in Vietnam in addition to the incident with the helicopter. The examiner does not appear to have considered this allegation, which is consistent with regulations providing that exposure is presumed for Veterans who set foot in Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in Vietnam from February 1966 to January 1967, and from April 1968 to November 1968. Accordingly, the examination report must be returned as insufficient. It is also noted that a May 2001 VA medical record indicates that the Veteran regularly saw Dr. Hendrix. While several records from the pulmonary specialist are of record, none correspond to that time frame. The Veteran should be asked to authorize the release of medical records from Dr. Hendrix. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Request that the Veteran authorize the release of all medical records from Dr. Hendrix and any other private medical provider who treats him for the disabilities at issue. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Thereafter, return the claims file to the examiner who conducted the January 2013 Respiratory Conditions examination and who offered the May 2013 addendum to that examination. If that examiner is not available, another qualified examiner should be consulted. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that COPD is caused by exposure to herbicides in service. The examiner must consider and discuss the Veteran's actual exposure in being doused and swallowing the herbicide in a helicopter crash, and his daily presumed exposure to herbicides while in Vietnam from February 1966 to January 1967 and from April 1968 to November 1968. A new physical examination is not required unless the reviewer determines such is necessary to adequately respond to the Board's inquiry. A full and complete rationale is required for all opinions expressed. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ S. S. TOTH 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).