Citation Nr: A21019404 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 190816-20611 DATE: December 6, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran had active service from April 1972 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the VA's decision on their claim to seek review. The Veteran timely appealed July 2019 rating decision to the Board by electing the AMA evidence submission lane, in which he acknowledged that his appeal will be based upon all evidence submitted to VA as of 90 days after the date of that election. In a July 2020 Board decision, the Board denied entitlement to service connection for a respiratory disability and entitlement to a rating in excess of 50 percent for bilateral hearing loss. The Veteran appealed the denial of entitlement to service connection for a respiratory disability to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court in July 2021 issued a Joint Motion for Partial Remand (JMPR), vacating the Board's decision for the Veteran's claim for entitlement to service connection for a respiratory disability, and remanded the appeal to the Board for readjudication consistent with the JMR. The Board finds that more development is necessary prior to final adjudication of the claim on appeal. The Board notes that VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that he has a respiratory disability that was incurred in service, to include as due to exposure to herbicide agents while he served in Thailand. Specifically, the Veteran has said that he was exposed to herbicide as a munitions maintenance specialist and observed the spraying of herbicide agents on the perimeter. The Veteran's military personnel record indicates he did serve in Thailand and that his military occupational specialty (MOS) was munitions maintenance specialist. The Board notes that although a respiratory disability has not been shown to warrant a regulatory presumption of service connection as a result of in-service herbicide exposure, it must still be determined whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). The Board notes that the Veteran submitted an article about the use of herbicide agents in Thailand and the Veteran's it may affect. Notably, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). As a result, the Board finds that a VA medical opinion is required to address whether the Veteran had a respiratory disability was related to his active duty service to include as secondary to in-service herbicide exposure. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) (4). Additionally, service connection may still be awarded for a respiratory disability based on a direct basis. Notably, the evidence reflects that a September 1973 service treatment record demonstrates one instance of asthma while in service. The Board also notes that there is some question as to whether the Veteran has a current respiratory disability. As noted by the Court in the July 2021 JMPR, a April 2019 private chiropractor submitted a letter stating the Veteran has "suffered from respiratory distress symptoms which have become progressively worse over the past one year" while in an October 2019 medical visit, a physician noted the Veteran had shortness of breath. However, the Parties in the JMPR indicated that both the April 2019 letter and October 2019 treatment report failed to provide a diagnosis for the Veteran's condition or provide a medical nexus opinion as the record currently lacked any competent medical opinion that addressed whether the Veteran had a current respiratory disability that was caused by an in-service event. The Board also notes that the Veteran has yet to undergo a VA examination in conjunction with his claimed respiratory disability. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4). As a result, the Board finds that a VA medical opinion is required to address whether the Veteran has a current respiratory disability related to his active duty service. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) (4). The Board noted that AMA provides that remands are warranted based on VA's duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand only where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. After a thorough review of the record, the Board finds the arguments of the Veteran's representative to be compelling. In requesting additional development on remand in this case, the Board notes that the basis for this remand arises from deficiencies in the record existing prior to the appealed AMA decision. Notably, prior to the rating decision, there was evidence of a possible in-service incurrence of a respiratory disability as the Veteran had an in-service instance of asthma. As noted above, despite the possible in-service respiratory issues and a possible current diagnosis of a respiratory disability, the Veteran was not provided with a VA examination prior to the appealed AMA decision. Thus, the Board finds that a remand is necessary in order to provide the Veteran with a VA examination and etiological opinion with respect to this claimed condition as there exists a pre-decisional duty to assist error and the claim must be remanded for an examination. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed respiratory disability. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current respiratory disability that initially manifested in or was otherwise etiologically related to the Veteran's service to include as due to the Veteran's conceded herbicide exposure. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.