Citation Nr: 1338698 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-34 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to March 1965, from September 1965 to September 1968, from December 1968 to January 1972, and from December 1973 to December 1976. This appeal to the Board of Veterans' Appeals (Board) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2012, in support of his claim, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. 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 Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claims. See 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet.App. 79 (2006). Under the circumstances presented in this case, the Board finds that the Veteran has met the guidance set forth in McLendon. In consideration of the Veteran's lay statements that his COPD is related to his active duty service to include as due to his exposure to Agent Orange, evidence of a current diagnosis of COPD, and with recognition of the "low threshold" as in McLendon, the Board finds that a remand for a VA examination to determine if the Veteran has COPD that is related to his active duty service is warranted. Additionally, an attempt should be made to obtain and pertinent records identified by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any outstanding VA treatment records that may exist. In particular, obtain any available treatment records from Muskogee, Oklahoma, VAMC. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2013). 2. After obtaining the above noted records, the RO/AMC must schedule the Veteran for a VA examination by a physician with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's diagnosed COPD; in particular, whether the Veteran's post-service diagnosis is due in whole or in part to active service or any incident therein. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the Veteran's contentions that his COPD is the result of Agent Orange exposure and that he had breathing problems while in service. c. All indicated tests and studies must be performed. d. T he examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to whether the Veteran's COPD is due in whole or in part to his active service or any incident therein. g. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. h. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity 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 or 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). _________________________________________________ JOHN Z. JONES 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).