Citation Nr: 1333170 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-25 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to Agent Orange. 2. Entitlement to service connection for asthma, to include as due to exposure to Agent Orange. 3. Entitlement to service connection for cardiovascular disease, to include as due to exposure to Agent Orange and/or hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from March 1968 to November 1969 including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 2008 by the Regional Office (RO) in Detroit, Michigan. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional relevant records contained therein. 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 seeks service connection for COPD, cardiovascular disease and asthma, to include as due to exposure to Agent Orange. He also claims his cardiovascular disease is due to hypertension. An enlistment examination of December 1967 noted that the Veteran suffered from asthma attacks as a child. A letter dated that same month from the Veteran's private physician stated that he had treated the Veteran for asthma as a child. An April 2002 pulmonary function test (PFT) shows a diagnosis of moderate obstructive and moderate restrictive disease. A July 2008 letter from Dr. D.F. stated that the Veteran had been diagnosed with obstructive and moderate restrictive lung disease based on the PFT results from April 2002. The letter further stated that the Veteran continued to have lung problems consistent with moderate and obstructive restrictive lung disease. The Veteran was afforded a VA examination in May 2008. At the time, he was diagnosed with atrial flutter with rapid ventricular response. It was noted that chest x-rays showed no signs of COPD or airway trapping problems. Considering the evidence above, the Board finds that additional development is needed prior to deciding the claim. It appears that there may be private treatment records which are relevant to the present claim which have not been obtained. Indeed, Dr. D.F. stated in July 2008 that the Veteran was his patient. Moreover, the April 2002 PFT showed it was ordered by Dr. D.F. On remand, the AMC should contact the Veteran and request that he provide the names and dates of treatment of all the physicians who have treated him for his respiratory problems. All identified records should be obtained and associated with the claim file. Furthermore, a new VA examination is needed. The May 2008 VA examiner stated that she had not reviewed any private treatment records. After the VA examination was rendered, private treatment records showing a diagnosis of moderate obstructive and restrictive disease were associated with the claim file. The findings of the May 2008 VA examination report must be reconciled with the findings in the private treatment records. In regards to the claim for service connection for a cardiovascular disease, the Board notes that the VA amended 38 C.F.R. § 3.309(e). See 75 Fed. Reg. 53202, effective August 31, 2010. In that amendment, ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents. The intended effect of this amendment was to establish presumptive service connection for this disorder based on herbicide exposure. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction, artherosclerotic cardiovascular disease (including coronary spasm), coronary bypass surgery, and stable, unstable, and Prinzmetal's angina. The Veteran has not been provided notice regarding this amendment. Notice must be provided and he must be given the opportunity to submit evidence in support of the claim if he so wishes. Moreover, the May 2008 VA examination report showed diagnoses of cardiomegaly and atrial flutter. The record is unclear as to the cause of the cardiomegaly and atrial flutter. Therefore, a VA examination is needed to determine the cause of cardiomegaly and atrial flutter and determine if the Veteran has an ischemic heart disease. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should contact the Veteran and request that he provide all of the names and dates of treatment of any private physician who treated him for his claimed respiratory problems. The RO/AMC should obtain and associate with the claim file all identified records. All efforts to obtain the additional evidence must be documented in the claims folder. If the AMC/RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claims; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 2. The RO/AMC should provide proper notice to the Veteran regarding the amendment to 38 C.F.R. § 3.309(e). Specifically, the Veteran should be informed that there is now a presumption of service connection for ischemic heart disease in cases where exposure to herbicides has been confirmed. The Veteran should be given adequate time to submit evidence on his behalf. 3. The RO/AMC should schedule the Veteran for an appropriate VA examination to determine if he currently has a cardiovascular disease. The claim folder must be made available to the examiner and access to the Veteran's Virtual VA file must be provided. The examiner must state that he/she reviewed the claims folder on the examination report. The examiner must identify any and all cardiovascular disabilities the Veteran currently has. It is noted the Veteran has been found to have cardiomegaly and atrial flutter. The examiner must provide an opinion as to the cause of the cardiomegaly and atrial flutter. For all cardiovascular disabilities identified, the examiner should provide an opinion as to whether there is a probability of 50 percent or greater that the same was caused by or aggravated by a disease or injury in service, to include exposure to herbicides. The examiner should determine if any cardiovascular disability was either (1) caused by or (2) is aggravated by the Veteran's hypertension. If the examiner determines that a cardiovascular disability is aggravated by hypertension, the examiner should report the baseline level of severity of the disability prior to the onset of aggravation. If some of the increase in severity of the disability is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. All necessary tests should be conducted. A complete rationale for nay opinion rendered must be provided. 4. The RO/AMC should schedule the Veteran for a VA examination by a respiratory specialist to determine the nature and etiology of any current respiratory disability the Veteran may have. The claim folder must be made available to the examiner and access to the Veteran's Virtual VA file must be provided. The examiner must state that the paper and Virtual claim files have been reviewed. All necessary tests should be conducted, including a PFT if deemed necessary. After a complete examination of the Veteran, the examiner must identify all current respiratory disabilities. The examiner must specifically state whether the Veteran currently has COPD and/or asthma. If COPD is not currently found, the examiner must reconcile the findings with the April 2002 PFT. If COPD is diagnosed, the examiner must provide an opinion as to whether COPD is at least as likely as not related to service to include exposure to Agent Orange therein. If asthma is diagnosed, the examiner must provide an opinion as to whether asthma was aggravated beyond its natural progression by service, to include exposure to Agent Orange. For any other respiratory disability diagnosed, the examiner must state whether it is at least as likely as not that the identified disability was caused or aggravated by service, to include exposure to Agent Orange, or whether such an etiology is unlikely. A complete rationale for any opinion rendered must be provided. 5. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO /AMC should review the Veteran's entire record, and readjudicate his claims. If the claims are denied, in whole or in part, the RO or the AMC should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ LANA K. JENG 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).