Citation Nr: 21073085 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-17 235 DATE: December 7, 2021 REMANDED Entitlement to service connection for chronic bronchitis is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for lung cancer is remanded. INTRODUCTION The Veteran had active service in the U.S. Army from January 1971 to October 1973. In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. REASONS FOR REMAND While delay is unfortunate, the Board finds further development is required before the Veteran's claims are decided. The Veteran asserts his above-claimed disabilities may be the result of either herbicide exposure, radiation exposure, other hazardous materials/chemical exposures, or alternatively may have been incurred in service. In the course of his September 2021 Board hearing, the Veteran stated he was certain numerous service treatment records (STRs) were not presently associated with his electronic record. In particular, the Veteran asserted that while he was stationed in Korea he experienced a significant bout of pneumonia, which required hospitalization. A review of his presently available STRs fails to show any treatment during his time in Korea, and also fails to provide a separation examination. To date, the RO has initiated a Personnel Information Exchange System (PIES) O50 request. However, there appears to be alternative avenues, which may result in the obtainment of these missing records. Specifically, the Board notes a C01 request to the PIES is available for inpatient records, and an M05 request is the proper request for any available sick call or morning reports. The Board also notes the Veteran's complete official military personnel file (OMPF) has not been obtained. The Board finds the RO should initiate all indicated development to obtain a complete set of the Veteran's OMPF, to specifically include a list of unit and base assignments, performance evaluations, or other administrative documents in order to facilitate a more meaningful search of the PIES repository. In addition, there is a possibility the Veteran's missing STRs could have been erroneously co-located with his OMPF. If the above-noted OMPF development does not result in sufficient evidence to conduct a meaningful search for the Veteran's missing STRs, the RO should inform the Veteran of the additional evidence needed and allow him to submit an NA Form 13055. Next, the Board notes the RO determined there was a lack of information required to verify his reported Agent Orange exposure by way of a December 2016 memorandum. In this respect, the RO cited to 38 C.F.R. § 3.307 (a)(6)(iv), which in principle part indicates presumptive service connection may be extended to veterans who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period. Though the Veteran did not serve in Korea until after August 1971, the U.S. Court of Appeals for the Federal Circuit has held 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 the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To date, the RO has not initiated development to determine if records previously researched by the Joint Services Record Research Center (JSSRC) may contain evidence to corroborate the Veteran's reports of herbicide exposure at Camp Irwin. The Veteran has also reported he was exposed to radiation during his time in service. In November 2017, he presented a Radiation Risk Activity Information Sheet, wherein he provided detailed information regarding his alleged radiation exposure. A review of the record shows the RO initiated development to both the U.S. Army Dosimetry Center and Public Health Directorate in order to obtain a copy of his DD 1141, Record of Exposure to Ionizing Radiation. The Board observes the development provisions of 38 C.F.R. § 3.311 apply to radiogenic diseases, which include diseases for which the claimant has cited or submitted competent scientific or medical evidence indicating the claimed condition can be induced by exposure to ionizing radiation. Pursuant to 38 C.F.R. § 3.309 (d), lung cancer is a disease considered related to radiation exposure, and as such the Board finds that the provisions of 38 C.F.R. § 3.311 are applicable to this claim. Therefore, further development to comply with the provisions of that section is in order. In particular, the above-noted regulation indicates the RO should initiate development to obtain all relevant records concerning the Veteran's exposure to radiation. Thereafter, this regulation indicates that all "such records will be forwarded to the Undersecretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies." This regulation provides for additional development which includes a referral to the Undersecretary for Benefits (USB), who may request an advisory medical opinion from the Undersecretary for Health. This development has not been accomplished in this case. Finally, the Board notes the Veteran provided supplementary STRs showing he was hospitalized for an extensive period from February to March 1971. During that time, he was diagnosed with both pneumonia and bronchitis. A review of his outpatient treatment records from the Muskogee VAMC shows he continues to experience chronic recurrent bronchitis and bronchiectasis. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 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 that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Based on the foregoing, the Board finds a VA examination and medical opinions are warranted. Accordingly, the case is REMANDED for the following actions: 1. Request from the National Personnel Record Center (NPRC), or other appropriate source, the Veteran's complete official military personnel file (OMPF) and service treatment records (STRs), to specifically include a PIES C01 and M05 request, to determine whether the following additional service records are available: a. Additional OMPF records that chronicle the Veteran's unit and base assignments. b. Any sick/morning reports for respiratory disorder treatment at Camp Irwin. c. Any outpatient service records relating to treatment for a respiratory disorder at Camp Irwin. d. Any clinical records of the Camp Irwin Medical Center mentioning the Veteran. e. Any potential inpatient records of the Camp Irwin Medical Center mentioning the Veteran. 2. Undertake any further steps necessary to obtain additional records that would assist in corroborating the Veteran's reports of exposure to herbicides in Korea, to specifically include a review of records previously researched by the Joint Services Record Research Center (JSSRC). If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Also, undertake development to obtain a dose estimate from the USH in accordance with 38 C.F.R. § 3.311. 4. The claim should then be referred to the USB for the review required under 38 C.F.R. § 3.311. The USB should expressly consider whether referral of this case to the USH for a medical advisory opinion is warranted, given the highly technical and specialized nature of this matter. The USB should provide a fully supported decision in accordance with 38 C.F.R. § 3.311(c). 5. Also, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed respiratory disorders. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any currently diagnosed respiratory disorder, to include bronchitis, COPD, or lung cancer at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. The examiner must specifically address the Veteran's reports relative to the etiology of the claimed disabilities. In particular, the Veteran's service treatment records show he was treated for both pneumonia and bronchitis in service. The Veteran has reported ongoing respiratory problems following service, and has asserted his current bronchitis/bronchiectasis, COPD, and lung cancer may be related to his persistent lung infections. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 6. Finally undertake any other indicated development, to specifically include consideration of obtaining additional VA medical opinions if the Veteran's reported exposure to other hazardous materials/chemicals including asbestos, oil/diesel, benezene, exhaust fumes, and other solvents can be corroborated. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.