Citation Nr: 1330756 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-16 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lung disorder, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. He had service in the Republic of Vietnam from November 1966 to November 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office in St. Louis, MO, which denied service connection for a lung disorder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has a current lung disorder due to herbicide exposure incurred while on active duty in the Republic of Vietnam. The record confirms the Veteran served in the Republic of Vietnam from November 1966 to November 1967. Therefore, he is presumed to have been exposed to herbicides. See 38 U.S.C.A. § 1116. If a Veteran was exposed to an herbicide agent during active military service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met: chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, soft-tissue sarcomas, hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). Notwithstanding the presumptive provisions, service connection for a lung disorder based on exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64(1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C.A. §§ 1113, and 1116, and 38 C.F.R. § 3.303). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a Veteran from demonstrating that the disorder was in fact related to service, to include exposure to herbicides. Combee v. Brown, 34 F.3d (Fed. Cir. 1994). The record reflects that the Veteran was treated for upper respiratory infections during service and that he has been treated for various lung disorders such as pneumonia and bronchitis following service. In October 2009, a VA examiner opined that the Veteran's current lung disorder is less likely than not due to service because his in-service upper respiratory infections were brief and discrete in nature. The Board finds this opinion inadequate because the examiner failed to address the question of whether the Veteran's lung disorder is related to his exposure to herbicides during service in accordance with the holding in Combee. The United States Court of Appeals for Veterans Claims (Court) has held that once VA undertakes an examination, even if not required to do so, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 322 (2007). Therefore, remand is required to accord the Veteran a new examination which adequately addresses his current appellate claim. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an examination to address the nature and etiology of his current lung disorder. The claims folder should be made available to the examiner for review before the examination. It should be noted that the Veteran is presumed to have been exposed to herbicides, including Agent Orange, in service. For each lung disability diagnosed, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's lung disability is related to service, to include in-service herbicide exposure. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to mere speculation, the examiner must state whether the need to speculate is caused by deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). 2. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran 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.N. HYLAND 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) (2012).