Citation Nr: 1803778 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-25 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a respiratory disorder, to include emphysema, asthma, and chronic obstructive pulmonary disease (COPD), including as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2015, the Board reopened and remanded the service connection claim for a respiratory disorder for development of the evidence. The Board again remanded the claim in April 2017 for further development. The claim has been returned for further appellate consideration. The Board has modified the Veteran's claim to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim"). REMAND Unfortunately, another 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. In April 2017, the Board remanded the claim to, in part, afford the Veteran a new VA examination evaluating whether any current respiratory disorder had its onset during service, is related to the Veteran's presumed exposure to herbicide agents, or is otherwise the result of a disease or injury in service. The examiner was directed to specifically address any respiratory disorders diagnosed since approximately April 2010 even if the disability is currently in remission or has completely resolved. Pursuant to the remand, a VA respiratory examination took place in August 2017. The examiner concluded that the claimed respiratory condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. In support of her conclusion, the examiner reasoned, in part, that the Veteran's asthma in service in 1968 was treated without residuals noted on his separation examination. However, the examiner did not address the July 2014 diagnosis of asthma from the Veteran's private physician, Dr. Mahaffey. In addition, the examiner stated that the Veteran's current respiratory condition of COPD was diagnosed many years after service and "there is no link to herbicide exposure...as literature does not support COPD as a [sic] presumptive to herbicide exposure." August 2017 Compensation and Pension Examination Report. She also stated that smoking or exposure to smoke is the leading cause of COPD. Elsewhere in the examination report, the examiner stated that COPD is not linked to herbicide exposure. The Board finds that the August 2017 examination report is inadequate. First, the examiner did not specifically acknowledge or comment on the Veteran's July 2014 diagnosis of asthma. See July 2014 Statement in Support of Claim by Dr. Mahaffey. The April 2017 remand instructions directed the examiner to specifically acknowledge and comment on any respiratory disorders diagnosed since approximately April 2010 even if the disability is currently in remission or has completely resolved. Second, the examiner's reasoning in support of her opinion that COPD is not linked to herbicide exposure is inadequate because it does not consider the Veteran's medical history. The examiner merely reasoned that smoking or smoke exposure is the leading cause of COPD. As such, an addendum opinion is required for the examiner to address and comment on the July 2014 diagnosis of asthma and to provide additional reasoning for the opinion that the Veteran's COPD is not linked to exposure to herbicide agents in service. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. With any required assistance of the Veteran, obtain any VA and/or pertinent private medical records that remain outstanding and associate them with the claims file. 2. Then, contact the examiner who performed the August 2017 VA examination if available, or other appropriate medical professional if necessary. If the examiner determines that an in-person examination is necessary in order to provide an opinion, then such an examination must be performed. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report. The examiner must complete the following: a. Specifically address and comment on the July 2014 diagnosis of asthma from the Veteran's private physician, Dr. Mahaffey, and any other respiratory disorder diagnosed since approximately April 2010 that the examiner did not address in the August 2017 examination report. b. Provide additional reasoning for the conclusion in the August 2017 examination report that COPD is not linked to herbicide exposure. In doing so, the examiner must specifically consider the Veteran's medical health history. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Finally, readjudicate the issue remaining on appeal- entitlement to service connection for a respiratory disorder, to include emphysema, asthma, and COPD, including as due to exposure to herbicide agents. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING 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).