Citation Nr: 1341772 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 11-11 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD) as due to herbicide exposure. REPRESENTATION Veteran represented by: Richard W. Gabriel, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from October 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2012. A copy of the transcript of that hearing is of record. At that time, the Veteran submitted a statement and a copy of a medical article in support of his claim. He waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). Nevertheless, in view of the action taken below, initial consideration of this evidence should be undertaken by the RO. In the July 2012 Travel Board hearing, the Veteran's attorney-representative raised the issue of entitlement to service connection for a heart disability as due to herbicide exposure. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his currently diagnosed COPD is due to herbicide exposure during service, specifically Agent Orange. In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Exposure to Agent Orange is conceded, as service records show that the Veteran did serve in the Republic of Vietnam. In this case, the Veteran has submitted numerous medical articles in support of his claim. Specifically, in the Veteran's Notice of Disagreement (NOD), dated in June 2010, his attorney-representative referred to a medical article entitled "The Seveso Studies on Early and Long-Term Effects of Dioxin Exposure: A Review." According to the Veteran's attorney-representative, the article discussed a relationship between Agent Orange (Dioxin) exposure and COPD. The Veteran's attorney-representative noted that the some of the authors of the aforementioned article wrote additional articles also linking Agent Orange exposure to the development of COPD. Moreover, at the time of the Veteran's July 2012 Travel Board hearing, the Veteran's attorney-representative submitted a copy of a medical article entitled "2,3,7,8 - Tetrachlorodibenzo-p-dioxin-Induced MUC5AC Expression" that was published in the American Journal of Respiratory Cell and Molecular Biology. The Veteran's attorney-representative reported that the article showed a relationship between Agent Orange exposure and the development of COPD. The Board notes that respiratory disorders, other than cancer of the lung, bronchus, larynx, or trachea, are not among presumptive disorders for the purpose of service connection based on exposure to herbicides. See 38 C.F.R. § 3.309(e). Thus, COPD is not in the list of diseases that are recognized by law as linked to exposure to herbicides. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The medical articles of record are not definitive. However, they do suggest a possible etiological relationship between a diagnosis of COPD and exposure to Dioxin. No VA opinion has been obtained. Thus, the Board finds that the Veteran should be afforded a VA examination to determine if his currently diagnosed COPD is related to service, to specifically include his in-service herbicide exposure. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, since the case is being remanded, recent medical records from the Salem VA Medical Center (VAMC) should be obtained. Finally, in November 2013 the Veteran's attorney-representative submitted a private medical record, dated in October 2013. He did not waive initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2013). Thus, initial consideration of this evidence should also be undertaken by the RO. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of the Veteran's treatment records from the Salem and/or Danville VAMC, dated since September 2008. 2. Thereafter, the RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA respiratory examination to ascertain the etiology of his COPD. The claims folder must be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished, including x-rays if deemed necessary by the examiner. After a review of the examination findings and the entire evidence of record, the examiner must answer the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed COPD is related to his period of active service, including his exposures to herbicides in Vietnam, to include Agent Orange. (The Veteran's exposure to herbicides is presumed by law.) In answering the aforementioned question, the examiner MUST comment on the medical articles submitted by the Veteran in support of his claim: specifically, the articles entitled "The Seveso Studies on Early and Long-Term Effects of Dioxin Exposure: A Review" and "2,3,7,8 - Tetrachlorodibenzo-p-dioxin-Induced MUC5AC Expression." The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A rationale should be provided for any opinion or conclusion expressed. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case (SSOC) which includes consideration of all evidence added to the record since the last statement of the case (SOC) was issued in February 2011, and an appropriate period of time must be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran 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. 2013). _________________________________________________ P.M. DILORENZO 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) (2013).