Citation Nr: 21001183 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-30 934 DATE: January 7, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and bronchitis, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1964 to November 1967, including service in the Republic of Vietnam for which he was awarded a Bronze Star, a Purple Heart, and two Combat Infantryman Badges. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012 rating decisions issued by a Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in June 2015 and October 2018 for additional development. REFERRED The issue of entitlement to service connection for the residuals of a through and through gunshot wound in the left side below the rib, noted in the Veteran’s Service Personnel Records as occurring on March 29, 1966, was claimed in November 2010. However, it has never been adjudicated by the Agency of Original Jurisdiction (AOJ) despite being referred for adjudication in the October 2018 Board remand. Therefore, the Board does not have jurisdiction over it, and it is again REFERRED to the AOJ for appropriate action. 38 C.F.R.§19.9(b) (2018). 1. Entitlement to service connection for a respiratory disorder, to include COPD and bronchitis, to include as due to herbicide agent exposure, is remanded. The Veteran asserts that his current respiratory disorders, to include COPD and bronchitis, either had their onset during his active duty service or are otherwise due to his active duty service, to include as due to his presumed exposure to herbicide agents. See December 2010 VA Form 21-526. Initially, the Board notes, regarding an in-service event or injury, that the Veteran is presumed to have been exposed to herbicide agents based on his confirmed service in the Republic of Vietnam. Additionally, his service personnel records document a gunshot wound to his left lower chest in March 1966 and receipt of a Purple Heart. See Service Personnel Records (SPRs). Private medical treatment records indicate the Veteran was treated for bronchitis as early as June 2006. See June 2006, December 2006, August 2007 private treatment records. Available VA treatment records indicate the Veteran reported that he was a current smoker in November 2010, specifically that he quit smoking cigarettes in approximately 2003 but still smoked cigars occasionally. In December 2010, a VA treatment provider diagnosed mild COPD concluding it was likely due to a history of smoking cigarettes. In May 2011, the Veteran continued to report smoking cigars. In January 2012, the Veteran reported to a VA treatment provider that he had never used tobacco, and then in February 2013, he reported smoking one pack per day though he quit 20 years ago. In October 2013, the Veteran submitted an article dated April 2010 and entitled “COPD Mortality Elevated in Vietnam Veterans Exposed to Herbicides.” The article refers to a study that found among Vietnam Veterans from the Army Chemical Corps, after normalizing for tobacco use, the risk of excess mortality was significantly higher for the Vietnam Veterans than for non-Vietnam Veterans in developing non-cancerous respiratory disorders, including COPD. Throughout the appeal period, the Veteran submitted to one VA examination in August 2015 ordered as a result of the June 2015 Board remand. The VA examiner diagnosed COPD and bronchitis, noting its presence for the last 10-15 years, and opined the Veteran’s respiratory disorders were unlikely related to his military service but that it was not out of the realm of possibility that his respiratory disorders were due to environmental exposures. Due to the inadequacy of the medical opinion and no clear reference as to whether all relevant evidence had been reviewed, the Board remanded this matter for an addendum opinion in October 2018. In October 2019, a VA examiner opined, without a rationale, that “the two conditions are not medically related” and that the claimed disorder was a separate entity entirely from the service-connected condition. It is unclear to what service-connected condition the October 2019 VA examiner is referring. Additionally, the examiner indicated that she reviewed the evidence supplied by the Veteran, specifically the COPD web article, by simply referencing that is was a part of Tab A noted on the examination request and pasted into her evidence section. See May 2020 Addendum Opinion. However, it is unclear to the Board, as it was in June 2015 and October 2018, if this evidence has been considered, as there has never been any discussion regarding the assertions and statistically significant findings therein regarding COPD and herbicide agent exposure. While COPD and bronchitis are not conditions that are presumptively associated with herbicide agent exposure, the Veteran may nevertheless still be awarded service connection for an herbicide-related disease if the evidence of record demonstrates a positive correlation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service). Here, the Veteran has presumed exposure to herbicide agents and has provided evidence of a nexus between his diagnosed respiratory disorders and this exposure. Accordingly, any medical opinion that relies solely on the lack of COPD and bronchitis’ presence in the list of herbicide related disorders in 38 C.F.R. § 3.309(e) will continue to be inadequate. Finally, the October 2019 VA examiner failed to consider the Veteran’s private treatment records documenting his treatment for repeated bouts of bronchitis. For the foregoing reasons, the October 2019 VA examiner’s opinion is of no probative value. Accordingly, a new addendum opinion is required on remand. All outstanding medical records should also be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then obtain an addendum opinion regarding the nature and etiology of the Veteran’s diagnosed respiratory disorders, to include COPD and bronchitis. No additional examination is required unless the examiner deems it necessary. The entire claims file, including a copy of this remand, should be made available to and reviewed by the examiner. After reviewing the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that each respiratory disorder: (a.) had its onset in service or is otherwise etiologically related to his active duty service to include: 1. the Veteran’s conceded exposure to herbicide agents during his combat service in the Republic of Vietnam; and 2. the Veteran’s in-service gunshot wound to his chest. In answering these questions, the examiner must also address in writing the following: 1. the Veteran’s history of tobacco use; 2. the findings reported in the April 2010 article entitled “COPD Mortality Elevated in Vietnam Veterans Exposed to Herbicides,” and 3. the Veteran’s assertion in his June 2012 Notice of Disagreement that exposure to herbicide agents led to a weakened immune system, allowing him to develop repeated episodes of bronchitis that eventually progressed to COPD. A complete rationale must be provided for all opinions expressed. If unable to opine without resorting to speculation, please provide a rationale for that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.