Citation Nr: 21030207 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-14 973 DATE: May 18, 2021 ORDER The application to reopen a claim of service connection for bronchitis is granted. The application to reopen a claim of service connection for asthma is granted. REMANDED Service connection for bronchitis. Service connection for asthma. Service connection for chronic obstructive pulmonary disease (COPD). Service connection of left lower extremity peripheral neuropathy. Service connection of right lower extremity peripheral neuropathy. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to October 1968. The case is on appeal from a July 2014 rating decision. In February 2020, the Veteran testified at a Board hearing. 1. Application to reopen a claim of service connection for bronchitis. 2. Application to reopen a claim of service connection for asthma. By a November 2008 rating decision, claims of service connection for bronchitis and asthma were denied. After a claim ot reopen, by a March 2010 rating decision, claims of service connection for bronchitis and asthma were again denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in July 2013. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the March 2010 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection for bronchitis and asthma are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also March 2017 Veteran Statement; Neurology Associates Private Medical Records. REASONS FOR REMAND 1. Service connection for bronchitis. 2. Service connection for asthma. 3. Service connection for COPD. The Veteran has, essentially, contended that he has a respiratory disability that had its onset during active service and that is related to in-service exposure to herbicide agents (e.g., Agent Orange) and/or dust. The Veteran's service personnel records (SPRs) notes that he served in the Republic of Vietnam from May 1967 to October 1968, with principal duties of engineer equipment repairment, engineer equipment mechanic and crawler tractor operator. Based on his Vietnam service, his in-service exposure to herbicide agents is presumed. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Evidence indicates that the Veteran has been diagnosed with a respiratory disability, to include the specifically claimed disabilities, during or contemporaneous to the appeal period. See August 2018 Arizona Respiratory Medicine Treatment Record (noting an assessment of asthma); February 2014 VA Treatment Record (noting an assessment of a history of "[a]sthma/COPD"); March 2013 VA Treatment Record (noting an assessment of "sinusitis/bronchitis"). The Veteran has reported having the onset of respiratory symptoms during active service and that such symptoms have continued since service. See August 2014 NOD ("the dust in Vietnam gave me a problem with breathing. The dust was laterite (red dust)"); March 2017 Veteran Statement (discussing his claimed respiratory condition and stating "[a]ll of these problems started when I was in Vietnam" and that "I did not have any respiratory problems before service, but I've had them ever since"); February 2020 Board Hearing Transcript, Page 3 (with the Veteran's representative stating that the Veteran "has been experiencing [the claimed conditions] pretty much ever since" service). The Veteran has contended that a respiratory disability is related to in-service exposure to herbicide agents and/or dust. See January 2008 VA Form 21-526 (stating regarding breathing problems that "I relate that to my exposure to Agent Orange [and] laterite soil in Vietnam" and stating that "laterite soil dust is clas[s]ified as hazard material"); August 2014 NOD; February 2020 Board Hearing Transcript, Pages 6-7 (describing in-service duties involving exposure to dust and stating "I was breathing that"). The Veteran also reported in a March 2017 statement, regarding respiratory symptoms, that "[o]ver the years, doctors have told me that these conditions could be related to Agent Orange exposure, or inhaling dust (laterite)." The Board finds that the evidence discussed above meets the "low threshold" to indicate that the Veteran's claimed disabilities "may be associated" with his active service. Accordingly, the Board finds that the requirements to obtain a VA examination and opinion addressing direct service connection are met and that remand is therefore warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the remand, outstanding VA treatment records should be obtained. This includes records prior to March 2007 (which are the earliest records of record, though earlier treatment is referenced); from May 2008 to December 2008 and July 2009 to January 2012 (these are gaps in the periods of VA obtained records) and from September 2020 (which are the most recent records of record). 4. Service connection for left lower extremity peripheral neuropathy. 5. Service connection for right lower extremity peripheral neuropathy. The Veteran has, essentially, contended that he has peripheral neuropathy that had its onset during active service and that is related to in-service exposure to herbicide agents. Evidence indicates that the Veteran has been diagnosed with peripheral neuropathy during the appeal period. See, e.g., March 2020 VA Treatment Record (noting an assessment of neuropathy); March 2018 Neurology Associates Treatment Record (noting an assessment of neuropathies). The Veteran has reported having the onset of neuropathy symptoms during active service and that such symptoms have continued since service. See May 2013 VA Treatment Note ("Has [c]hronic peripher[al] neuropathy, limited to feet (since Vietnam)"); June 2013 VA Treatment Note ("has been reading up on [Agent Orange] exposure and re[la]ted conditions" and noting "his chronic neuropathy that has been present for 40 y[ea]rs"); October 2015 Veteran Statement (describing symptoms in his feet during active service and that "[f]rom then on my feet keep hurting and num[b]ness"); March 2017 Veteran Statement (describing symptoms in his feet during active service and stating that "[t]he numbness and tingling and pain affected me and required treatment. And the symptoms never went away. I've experienced the symptoms ever since I was in Vietnam, and my records show that I currently experience the same symptoms, and that I have been diagnosed with peripheral neuropathy"); February 2020 Board Hearing Transcript, Page 3 (with the Veteran's representative stating that the Veteran "has been experiencing [the claimed conditions] pretty much ever since" service). Of record are private medical records from Neurology Associates. Various records, to include a March 2018 note, stated that the Veteran had "a history of direct and repeated Agent Orange exposure in Vietnam who presents for evaluation and management of peripheral neuropathy," that the Veteran "reports that he first developed neuropathic pain while still in Vietnam. He remembers not being able to wear combat boots because of the pain in his ankles" and that "[s]ince that time his neuropathy has been progressive." In addition, various Neurology Associates notes from Dr. A.A., to include from April 2019, stated "suspect that [Veteran's] advanced [peripheral neuropathy] caused by agent orange." The Veteran's service treatment records (STRs) included a July 1968 STR, which was while the Veteran was in Vietnam. It noted complaints of sores on both feet and stated "Sores appear pustular. There is a burning sensation before they hurt." The Veteran has also reported that he was told during service that he had neuropathy. See November 2014 Veteran Statement ("I did have problems with my feet while I serv[]ed in Vietnam, I could not wear the boots. The doctor[]s at the time said I had Neuropathy"); March 2017 Veteran Statement (describing symptoms in his feet during active service and stating that "at least one doctor at the time said I had neuropathy"). The Board finds that the evidence discussed above meets the "low threshold" to indicate that the Veteran's claimed peripheral neuropathy "may be associated" with his active service. Accordingly, the Board finds that the requirements to obtain a VA examination and opinion addressing direct service connection are met and that remand is therefore warranted. See McLendon, 20 Vet. App. at 81. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records, which includes: (a.) Prior to March 2007. (b.) From May 2008 to December 2008. (c.) From July 2009 to January 2012. (d.) From September 2020. 2. Afford the Veteran a VA examination with respect to his asthma, bronchitis and COPD claims. The examiner should provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that asthma, bronchitis and/or COPD had their onset during service or are otherwise related to service. The examiner's attention is invited to: (a.) The Veteran's report of having the onset of respiratory symptoms during active service and that such symptoms have continued since service. See August 2014 NOD ("the dust in Vietnam gave me a problem with breathing. The dust was laterite (red dust)"); March 2017 Veteran Statement (discussing his claimed respiratory condition and stating "[a]ll of these problems started when I was in Vietnam" and that "I did not have any respiratory problems before service, but I've had them ever since"); February 2020 Board Hearing Transcript, Page 3 (with the Veteran's representative stating that the Veteran "has been experiencing [the claimed conditions] pretty much ever since" service). (b.) The Veteran's contention that a respiratory disability is related to in-service exposure to herbicide agents and/or dust. See January 2008 VA Form 21-526 (stating regarding breathing problems that "I relate that to my exposure to Agent Orange [and] laterite soil in Vietnam" and stating that "laterite soil dust is clas[s]ified as hazard material"); August 2014 NOD; February 2020 Board Hearing Transcript, Pages 6-7 (describing in-service duties involving exposure to dust and stating "I was breathing that"). (c.) The Veteran's report in a March 2017 statement, regarding respiratory symptoms, that "[o]ver the years, doctors have told me that these conditions could be related to Agent Orange exposure, or inhaling dust (laterite)." (d.) The Veteran's report that, essentially, he does not have a family history of respiratory disabilities. See October 2015 and March 2017 Veteran Statements; February 2020 Board Hearing Transcript, Page 7. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 3. Afford the Veteran a VA examination with respect to his left and right lower extremity peripheral neuropathy claims. The examiner should provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any peripheral neuropathy had its onset during service or is otherwise related to service. The examiner's attention is invited to: (a.) The Veteran's report of having the onset of neuropathy symptoms during active service and that such symptoms have continued since service. See May 2013 VA Treatment Note ("Has [c]hronic peripher[al] neuropathy, limited to feet (since Vietnam)"); June 2013 VA Treatment Note ("has been reading up on [Agent Orange] exposure and re[la]ted conditions" and noting "his chronic neuropathy that has been present for 40 y[ea]rs"); October 2015 Veteran Statement (describing symptoms in his feet during active service and that "[f]rom then on my feet keep hurting and num[b]ness"); March 2017 Veteran Statement (describing symptoms in his feet during active service and stating that "[t]he numbness and tingling and pain affected me and required treatment. And the symptoms never went away. I've experienced the symptoms ever since I was in Vietnam, and my records show that I currently experience the same symptoms, and that I have been diagnosed with peripheral neuropathy"); February 2020 Board Hearing Transcript, Page 3 (with the Veteran's representative stating that the Veteran "has been experiencing [the claimed conditions] pretty much ever since" service). (b.) Private medical records from Neurology Associates. See, e.g., March 2018 Note (stating that the Veteran had "a history of direct and repeated Agent Orange exposure in Vietnam who presents for evaluation and management of peripheral neuropathy," that the Veteran "reports that he first developed neuropathic pain while still in Vietnam. He remembers not being able to wear combat boots because of the pain in his ankles" and that "[s]ince that time his neuropathy has been progressive"); April 2019 Dr. A.A. Note ("suspect that [Veteran's] advanced [peripheral neuropathy] caused by agent orange"). (c.) July 1968 STR, which was while the Veteran was in Vietnam, which noted complaints of sores on both feet and stated "[s]ores appear pustular. There is a burning sensation before they hurt." (d.) The Veteran's report that he was told during service that he had neuropathy. See November 2014 Veteran Statement ("I did have problems with my feet while I serv[]ed in Vietnam, I could not wear the boots. The doctor[]s at the time said I had Neuropathy"); March 2017 Veteran Statement (describing symptoms in his feet during active service and stating that "at least one doctor at the time said I had neuropathy"). (e.) The Veteran's report that, essentially, he does not have a family history of peripheral neuropathy. See October 2015 Veteran Statement. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.