Citation Nr: 1756966	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  10-35 484	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for a skin disorder, to include as due to herbicide agent exposure.

2.  Entitlement to service connection for a lung disorder, to include emphysema, as due to herbicide agent exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Budd, Counsel



INTRODUCTION

The Veteran served on active duty from February 1966 to February 1969.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.  These matters were denied by the Board in February 2017.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In October 2017, the Court issued an order grating a Joint Motion for Remand (JMR).  The order served to vacate and remand the February 2017 denial.

The appeal is REMANDED to the agency of original jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The October 2017 Court order granted a JMR finding that the duty to assist requires VA to schedule an examination in this case.  VA will provide a medical examination when there is competent evidence of a current disability, an in-service event, an indication that the current disability may be associated with the in-service event, and insufficient competent medical evidence to make a decision.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Veteran contends that his lung disorder and skin disorder were caused by exposure to herbicide agents in Vietnam.  Exposure to herbicide agents is presumed because the Veteran's personnel records reflect service in the Republic of Vietnam during the Vietnam era.  The May 2010 private opinion concluding that the Veteran's skin rash and lung problems are a result of exposure to herbicide agents meets the low bar of finding that the Veteran's disabilities may be associated with the in-service event.  Therefore, remand is required to schedule an examination.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination with an appropriate VA clinician.  After reviewing the claims file and performing any necessary tests, the examiner is asked to provide the following opinions:

i) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a skin disorder that is etiologically related service, to include exposure to herbicide agents?  The examiner is advised that the Veteran asserted in a January 2009 treatment note  that a skin rash on his lower extremities has been present since 1973 or 1974.
 
ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a lung disorder, including emphysema, that is etiologically related service, to include exposure to herbicide agents? 

Each opinion offered must be supported by a complete rationale.

2.  After completing the above development, readjudicate the issues on appeal.  If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.  

The appellant 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 2014).



_________________________________________________
U. R. POWELL
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) (2017).