Citation Nr: 21012157 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-31 756 DATE: March 3, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as due to herbicide agent exposure and/or secondary to service-connected coronary artery disease with diastolic congestive heart failure, tricuspid regurgitation, pulmonic regurgitation and pulmonary hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. The Veteran requested a hearing before a Veterans Law Judge. See June 2016 VA Form 9, Appeal to the Board of Veterans’ Appeals. The Veteran was informed of the date, time, and location of the hearing in a letter dated March 12, 2019. The letter informing the Veteran of the date, time, and location of the hearing was mailed to him. Without explanation, the Veteran did not attend the hearing, nor did he request to reschedule the hearing. Accordingly, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. §§ 20.704(d), (e). Unfortunately, the Veteran’s claim for service connection must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim, so he is afforded every possible consideration. Entitlement to service connection for COPD, including as due to herbicide agent exposure and/or secondary to service-connected coronary artery disease with diastolic congestive heart failure, tricuspid regurgitation, pulmonic regurgitation and pulmonary hypertension is remanded. To evaluate the nature and etiology of the Veteran’s COPD, he was afforded a March 2016 Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire. In an April 2016 accompanying opinion, the examiner stated that the Veteran’s COPD was less likely than proximately due to or the result of his service-connected coronary artery disease. As rationale, the examiner stated that, “The etiology of his emphysema is due to his 40 pack year smoking history. The American Lung Association research links development of emphysema. In addition I found no evidence of VHF or pulmonary edema.” As the rationale for the examiner’s opinion is unclear, the matter must be remanded for an additional medical opinion. Additionally, VA has established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Because the Veteran served in the Republic of Vietnam during the Vietnam Era, as shown by his receipt of the Vietnam Campaign Medal and Vietnam Service Medal, he is presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6); see also Certificate of Release or Discharge from Active Duty. However, the Veteran’s COPD does not qualify for the presumption of service connection based on herbicide agent exposure under 38 C.F.R. § 3.309(e). Accordingly, service connection on a presumptive basis under § 3.309(e) cannot be established for the Veteran’s COPD. Although presumptive service connection based on herbicide agent exposure is not available for the Veteran’s claim for service connection for COPD, service connection may still be established with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”); cf. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the matter must be remanded for a medical opinion regarding whether there is a relationship between the Veteran’s COPD and his in-service herbicide agent exposure. See Combee, 34 F.3d at 1042. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the present. 2. After the above development is completed, obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s COPD. The clinician must review the Veteran’s claims folder. The clinician must: (a.) Opine whether the Veteran’s COPD is at least as likely as not (50 percent probability or greater) related to his in-service herbicide agent exposure. If a negative opinion is rendered on this matter, the clinician may not rely solely on the fact that the Veteran’s COPD is not on the presumptive list of diseases associated with herbicide exposure. 38 C.F.R. § 3.309(e). (b.) Opine whether the Veteran’s COPD is at least as likely as not (50 percent probability or greater) proximately due to his service-connected coronary artery disease with diastolic congestive heart failure, tricuspid regurgitation, pulmonic regurgitation and pulmonary hypertension. A complete rationale must be provided for all opinions and conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.