Citation Nr: 21000040 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-59 423 DATE: January 4, 2021 REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran had active service from January 1969 to August 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the August 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In March 2019, the Board denied service connection for the Veteran’s asthma and COPD. The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Memorandum Decision, the Court set aside the Board’s March 2019 decision, and remanded the case for compliance with instructions provided in the Memorandum Decision. After a careful review of the Veteran’s claims file, the Board finds that further development is required prior to adjudicating the Veteran’s claims. The Veteran contends he developed asthma and COPD due to his presumptive exposure to the tactical herbicide, Agent Orange. The Veteran has not yet been afforded a VA examination. VA must provide a medical examination when there is evidence of the following: (1) a current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease; and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. See McLendon, 20 Vet. App. at 83. The Court determined that the Board erred in failing to provide adequate reasons or bases in support of its implicit finding that VA satisfied its duty to assist with respect to whether a VA examination was warranted. When discussing an ambiguous October 2013 medical opinion, the Court noted that medical evidence that is equivocal or speculative in nature may still suffice to satisfy the low McLendon threshold. There is evidence of a current disability and the presumption of an in-service injury due to Agent Orange, but there is insufficient competent medical evidence on file to decide the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As such, on remand, a VA examination should be obtained in order to assist in determining the nature and etiology of the Veteran's asthma and COPD. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records dated since November 2016. 2. Schedule the Veteran for a VA examination to determine the etiology of his current asthma and COPD. The entire claims file, including a copy of this Remand and the Memorandum Decision, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. After reviewing the Veteran’s claims file and with consideration of the Veteran’s lay statements, a qualified medical professional is asked to address the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s asthma had its onset in, or is otherwise related to the Veteran’s period of active duty service, to include his presumed exposure to herbicide agents during service in Vietnam? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s COPD had its onset in, or is otherwise related to the Veteran’s period of active duty service, to include his presumed exposure to herbicide agents during service in Vietnam? The examiner must review and discuss the evidence of record and provide an opinion supported by adequate reasons and bases. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. 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 38U.S.C.A. §§5109B, 7112 (West 2014). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.