Citation Nr: 1802306 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-24 638A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to August 1968, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Diego, California. Jurisdiction of the Veteran's claims is now with the RO in Oakland, California. In addition to the issue listed above, on his Notice of Disagreement the Veteran included the issues of entitlement to service connection for hypertension and peripheral neuropathy. Those issues were included in the May 2016 Statement of the Case (SOC). However, in the Substantive Appeal on a VA Form 9, filed in response to the SOC, the Veteran specifically limited his appeal to the issue of entitlement to service connection for COPD. As such, the issues of entitlement to service connection for hypertension and peripheral neuropathy are not before the Board for adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Given the Veteran's confirmed service in the Republic of Vietnam during a period within the period beginning January 9, 1962, and ending May 7, 1975, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). In a statement dated in October 2013, the Veteran's provider at VA reported that the Veteran's problems included COPD. The provider stated that the relationship of the condition to exposure to Agent Orange should be determined by an Agent Orange compensation examination. Review of the claims file reveals that the Veteran has not been afforded a VA examination with regard to etiology of his COPD. As there is an indication that the Veteran has been diagnosed with COPD as well as an indication that the disability may associated with his service, to include his presumed exposure to herbicides, the Board finds it necessary to afford the Veteran a VA examination regarding the etiology of the disorder. See 38 C.F.R. § 3.159. Review of the claims file reveals a statement from the Veteran that he has received treatment from VA since 2000 and reveals a VA treatment note dated in October 2011 that indicates that the Veteran was returning. VA treatment records dated from October 2011 to May 2016 have been obtained and associated with the claims file. On remand, attempts must be made to obtain and associate with the claims file all VA treatment records regarding the Veteran dated prior to October 2011 and since May 2016. See id. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Take all appropriate action to obtain and associate with the claims file all VA medical records regarding the Veteran dated prior to October 2011 and since May 2016. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed COPD. Copies of all pertinent records should be made available to the examiner for review. The examiner is asked to furnish opinions with respect to the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's COPD is related to the Veteran's military service, to include his in-service exposure to herbicides? A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).