Citation Nr: 21065230 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-27 542A DATE: October 25, 2021 REMANDED Entitlement to service connection for a respiratory disability, including chronic obstructive pulmonary disorder (COPD), asthma, and emphysema, claimed as due to in-service exposure to an herbicide agent, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1966 to December 1968, to include in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran's appeal was previously before the Board in August 2018, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. In a March 2020 rating decision, the AOJ established service connection for posttraumatic stress disorder (PTSD), a disability which was subject to the Board's prior remand. This allowance, while not final regarding the downstream elements of the award of service connection, abrogates the Veteran's appealed issue regarding that disability. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran's remaining appealed issue has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a respiratory disability, including COPD, asthma, and emphysema, claimed as due to in-service exposure to an herbicide agent, is remanded. In the August 2018 remand, the Board directed the AOJ to obtain opinions addressing a possible medical nexus between COPD and his active duty, to include his presumed exposure to an herbicide agent. After a review of the record and examination of the Veteran, a VA clinician opined in November 2019 that COPD was less likely as not proximately due to or the result of any incident of the Veteran's active duty, to include his presumed exposure to an herbicide agent. While noting the above opinion and detailed rationale offered by the November 2019 VA examiner, the Board concludes that another remand is necessary. Specifically, in addition to a diagnosis of COPD, the November 2019 VA examiner noted a diagnosis of emphysema and recent VA treatment records also reflect a diagnosis of asthma. The United States Court of Appeals for Veterans Claims (the Court) held in Clemons v. Shinseki, 23 Vet. App. 1 (2009), that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In view of the additional respiratory diagnoses evidenced in the record and the Court's holding in Clemons, the Board has expanded and recharacterized the Veteran's appealed issue as stated on the title page. Downstream from this action, VA's duty to assist the Veteran includes the onus of obtaining medical nexus opinions addressing the etiology of all respiratory disabilities diagnosed during the appeal period. As such, another remand is necessary. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, the AOJ must transfer the file to the VA clinician who completed the November 2019 VA respiratory examination. After another review of the complete file, the examiner is requested to address the following: a. Identify all respiratory disabilities present during the appeal period (since April 27, 2011). *If COPD, asthma, and/or emphysema is not identified in part (a) such a finding must be reconciled with the evidence of record reflecting these disabilities. b. For each disability identified in part (a), provide an opinion addressing whether such is at least as likely as not proximately due to or the result of his active duty, to include his presumed in-service exposure to an herbicide agent. *In addressing the above, the examiner is reminded that, even though a disability may not be included among the list of diseases which VA presumes to be caused by herbicide exposure, a favorable opinion may still be rendered if the clinician believes that the disability is the direct result of the Veteran's service, to include his in-service exposure to herbicides. In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. If the examiner cannot provide any requested opinion without resorting to mere speculation, such should be stated along with a complete explanation for that conclusion. *If the November 2019 VA examiner is unavailable or if it is felt that a physical examination is necessary to address the above points, such should be scheduled, and the Veteran should be informed of the time and place to report. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.