Citation Nr: 21028036 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-51 733 DATE: May 10, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for 90 days for the Veteran to submit additional evidence, for which he waived RO consideration. The 90-day period has expired, and no additional evidence has been received since the Board hearing. The Veteran claims COPD is the result of his active duty service, including exposure to Agent Orange while serving in Vietnam. His service personnel records show the Veteran served in the Republic of Vietnam from November 1965 to November 1966; thus, his exposure to Agent Orange is presumed. See 38 C.F.R. § 1116. However, COPD is not presumptively linked to in-service Agent Orange Exposure. See 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Post service VA and private clinical records show diagnosis of and treatment for COPD. In addition, the Veteran has submitted a July 2013 statement from his private physician which notes the Veteran's 15 year history of smoking, which he quit in 1968, and exposure to agent orange (dioxin) while deployed in Vietnam. This statement includes the opinion that the Veteran's "shortness of breath which at times behaves like reactive airway disease may have been secondary to exposure to dioxin." This statement is phrased in speculative terms ("may") and provides no explanation of rationale; thus, it is not sufficient for rating purposes. There is no VA examination that discusses the etiology of the Veteran's COPD. In light of the foregoing, the Board finds that the low threshold has been met for triggering the Secretary's duty to assist by providing a medical examination to determine the nature and etiology of the Veteran's COPD. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding VA and private treatment records pertinent to the Veteran's claim. 2. After the development in paragraph 1 has been completed to the extent possible, please obtain a medical opinion as to the nature and etiology of the Veteran's COPD. Based on review of the record (and, if necessary and deemed feasible, interview and examination of the Veteran, and using telehealth techniques if possible), the clinician should respond to the following: Is it at least as likely as not (at least a 50 percent probability) that a respiratory disorder, including COPD, was incurred in or is otherwise etiologically related to active military service, to include the Veteran's presumed exposure to Agent Orange? In providing the requested opinions, in addition to reviewing the Veteran's claims file, the examiner should consider and address as necessary (a) the Veteran's service treatment records which show treatment for complaints of chest pain secondary to muscular strain and cough with impression of URI (upper respiratory infection) and (b) July 2013 statement from his private physician noting that the Veteran's 15 year history of smoking prior to 1968 and opining that his "shortness of breath which at times behaves like reactive airway disease may have been secondary to exposure to dioxin." The opinion provider is advised that the rationale for a negative opinion cannot rely solely on the fact that the disability is not on the list of presumptive diseases associated with exposure to herbicides. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.