Citation Nr: 21072225 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-06 933 DATE: December 2, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include bronchitis, pneumonia, and chronic obstructive pulmonary disease (COPD), and to include as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to September 1967. This appeal to the Board of Veterans' Appeals (Board) is from April 2016, September 2016, and February 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Although the RO adjudicated the September 2016 and February 2017 rating decisions as claims to reopen, the Board finds the original claim remained pending since new and material evidence was repeatedly submitted within the appeal period. See 38 C.F.R. § 3.156(b). Therefore, the Board has characterized the issue as one for service connection. In January 2021, the Veteran testified during a hearing before the undersigned; a transcript of the hearing is in the record. It was agreed at the hearing that the record would remain open for 90 days to allow additional time to submit evidence. Additional evidence was received later that month. Entitlement to service connection for a respiratory disorder, to include bronchitis and COPD, and to include as due to exposure to herbicide agents is remanded. Additional evidence is needed prior to adjudicating the claim. A VA examiner offered an unfavorable opinion in March 2016 on the basis that there was no current evidence of the claimed disability. Evidence added to the record since then indicated the Veteran had been diagnosed with respiratory disorders, but an additional VA examination was not requested to consider that evidence. In support of his claim, the Veteran submitted private opinions dated in October 2016 and January 2021 from his private physician. Dr. Malotky's opinions are favorable to the Veteran's claim but are inadequate since they did not take into consideration relevant evidence of another possible causes for the Veteran's respiratory disorders. In particular, he stated that the Veteran had no other history that would cause or contribute to his chronic condition. Although he did not offer an opinion, Dr. Ragsdale indicated in a January 2009 private treatment record that the Veteran had recurrent episodes of pneumonia and noted he had several episodes in service and had a 40 year history of daily exposure to cement dust. Notably, a December 1967 service personnel record also noted the Veteran's civilian occupation was a cement finisher. This other potential cause for the Veteran's claimed disability has not been considered in any opinion, so the matter must be remanded for an opinion. The Board also notes the RO did not attempt to obtain the private treatment records from Dr. Malotky that documented his treatment for the Veteran's respiratory problems, so this should be accomplished on remand. The Veteran also stated during his hearing that he had been recently hospitalized for pneumonia, so those records should be obtained as well. The matter is REMANDED for the following action: 1. Ask the Veteran to identify where he was hospitalized for pneumonia in later 2020 or early 2021 and then obtain those records. 2. Ask the Veteran to complete a VA Form 21-4142 to obtain copies of treatment records for respiratory disorders from Dr. Malotky. Make two requests for the authorized records from the physician unless it is clear after the first request that a second request would be futile. 3. After #1 and #2 are completed, obtain a medical opinion by an appropriately qualified examiner to determine the nature and etiology of the Veteran's diagnosed respiratory disorders. It is up to the discretion of the examiner as to whether an in-person examination is necessary. The record must be made available to and reviewed by the clinician. The clinician should provide the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed respiratory disorders, to include chronic bronchitis, pneumonia, and COPD had their onset during service or are otherwise etiologically related to the Veteran's active duty service? b) Is it at least as likely as not that the Veteran's diagnosed respiratory disorders are related to exposure to herbicide agents during active duty service in Vietnam? c) The clinician must explain the rationale for each opinion and consider the history of respiratory problems noted in service treatment records, the Veteran's reported history of post-service respiratory problems, the Veteran's wife's January 2021 statement, and his 40 plus year history of working around cement and cement dust. d) If the clinician is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.