Citation Nr: 1510412 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 13-03 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a lung condition, diagnosed as bilateral pulmonary nodules, to include as secondary to Agent Orange exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969, with service in the Republic of Vietnam. His awards include the Combat Infantryman's Badge, the Air Medal and the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board has reviewed all pertinent evidence in the Veteran's claims file, including all relevant evidence contained in his Virtual VA and the Veterans Benefits Management System (VBMS) efolders. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the Veteran's claim must be remanded to obtain additional treatment records and provide the Veteran with a new VA examination and opinion addressing whether his currently diagnosed bilateral pulmonary nodules are related to his exposure to any disease or injury he experienced during service, to include exposure to Agent Orange. The Veteran's service records show that he suffered a chest wall trauma and an upper respiratory infection during service. His records further show that he served in the Republic of Vietnam, and thus is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii) (2014). He was provided with a VA examination in August 2012. Although the examiner opined that the Veteran's bilateral pulmonary nodules were not related to the chest injury or respiratory infection he suffered during service, the examiner did not address whether his current condition was related to his exposure to Agent Orange during service. As such, a new examination addressing this issue is warranted. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006). Additionally, the examiner's negative nexus opinion was based, at least in part, on the Veteran's failure to report any respiratory symptoms which were present or persistent since his service. However, the Veteran testified during an October 2012 hearing before the Decision Review Officer that he has had recurrent breathing problems, which included feeling a burning sensation in his lungs, since service. See October 2012 Hearing Tr. at 7. Thus, a new opinion considering this evidence is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board further notes that the Veteran has continued to be treated by the VA in connection with his bilateral pulmonary nodules. On remand, any outstanding treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private medical records regarding the Veteran's treatment for any lung/respiratory disorder, including bilateral pulmonary nodules. 2. Notify the Veteran that he can submit statements from himself and from others who have first-hand knowledge or were contemporaneously informed of any lung or respiratory disorders during and since service. 3. After obtaining any outstanding records, schedule the Veteran for the appropriate VA examination(s) to determine the current nature of his lung/respiratory disorder and whether any diagnosed disorder is etiologically related to service. The entire record should be made available to and reviewed by the examining VA clinician(s), and the examination report(s) should note that such evidentiary review took place. The VA examiner is requested to identify all currently-diagnosed lung/respiratory disorder, to include bilateral pulmonary nodules. The examiner should also determine whether it is at least as likely as not that any current lung/respiratory disorder, including bilateral pulmonary nodules, had its onset in or is related to any disease or injury the Veteran experienced during service, including his in-service exposure to herbicides. In answering these questions, the examiner(s) must acknowledge and discuss the Veteran's own assertions, and any other lay evidence of record, which addresses the observable symptoms associated with his reported skin condition. Specifically, the examiner should consider and address the Veteran's October 2012 testimony that he has had recurrent breathing issues, including a recurrent burning sensation in his lungs, since service. See October 2012 Hearing Tr. at 7. A complete rationale should be provided for any opinion stated. If the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a 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). 4. Then readjudicate the appeal. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).