Citation Nr: A25035606 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 200425-476151 DATE: April 17, 2025 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from February 1967 to March 1970. Unfortunately, during the pendency of the appeal, the Veteran died in May 2023, and the appellant is his spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 Statement of the Case of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Veteran disagreed with the decision by submitting a VA Form 10182 and electing a Board hearing. In January 2025, the appellant testified before the undersigned Veterans Law Judge. The Board may only consider the evidence of record before the Agency of Original Jurisdiction (AOJ) at the time of its decision on the issue on appeal, evidence submitted by the appellant or his or her representative at the Board hearing, to include testimony provided at the hearing; and evidence submitted within 90 days following the Board hearing. 38 C.F.R. § 20.300(a), 302(a). If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions. If evidence is not resubmitted, the appellant is welcome to file a supplemental claim to have this evidence considered. Id.; Cook v. McDonough, 36 Vet. App. 175 (2023). Upon review of the claims file, the Board finds that a pre-decisional duty to assist error has occurred that requires remand of the claim. The Veteran asserted that his claimed COPD was related to his military service. Indeed, during his lifetime, he contended that he was misdiagnosed with other respiratory diseases while in service, when in fact, it was COPD. The Veteran's service treatment records show that he was diagnosed with and hospitalized for pneumonia and broncitous (sic) (bronchitis) while serving in Vietnam. Post-service treatment records reveal that he was later diagnosed with COPD, possibly related to tobacco use. Records also show the Veteran was stationed in Vietnam during the Vietnam era, and VA has conceded that he was exposed to Agent Orange. The Board notes that on August 10, 2022, the President signed into law the Sergeant First Class Health Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Pub. L. No. 117-168, 136 Stat. 1759 (2022), which, in pertinent part, amended the provisions under 38 U.S.C. § 1116 to expand the presumption of exposure to certain herbicide agents to veterans who served in certain locations. A veteran who performed covered service shall be presumed to have been exposed during such service to an herbicide agent and may be presumed to have been exposed during service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(c). 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, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(i). For purposes of application of this legal presumption, covered service means active military, naval, air, or space service performed (1) in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) in Thailand at any U.S. or Royal Thai base during the period beginning on January 9, 1962, and ending on June 30, 1976, without regard to where on the base the veteran was located or what military job specialty the veteran performed; (3) in Laos during the period beginning on December 1, 1965, and ending on September 30, 1969; (4) in Cambodia at Mimot or Krek, Kampong Cham Province during the period beginning on April 16, 1969, and ending on April 30, 1969; or (5) on Guam or American Samoa, or in the territorial waters thereof, during the period beginning on January 9, 1962, and ending on July 31, 1980, or served on Johnston Atoll or on a ship that called at Johnston Atoll during the period beginning on January 1, 1972, and ending on September 30, 1977. Veterans Agent Orange Exposure Equity Act of 2022, Pub. L. No. 117-168, Title IV, § 403(b), (d), 136 Stat. 1775, 1780-1782 (August 10, 2022); 38 U.S.C. § 1116(d). Furthermore, the PACT Act expanded the specific diseases associated with exposure to herbicide agents entitled to presumptive service. Fair Care for Vietnam Veterans Act of 2022, Pub. L. 117-168, Title IV, § 404(b), (c), 136 Stat. 1775, 1780-1782 (August 10, 2022). Those diseases that are listed at 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e), shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during covered service, even though there is no record of such disease during such service. 38 U.S.C. 1116(a)(1); 38 C.F.R. § 3.307(a); see also Veterans Agent Orange Exposure Equity Act of 2022. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that COPD is not among the list of presumptive conditions. Nevertheless, the Veteran's COPD, if found to be directly linked to his military service, including due to herbicide exposure, can be granted service connection on a direct basis. In a November 2019 medical opinion, a VA examiner opined that it is less likely than not the Veteran's diagnosed COPD was incurred in or caused by the claimed in-service injury, event, or illness. In doing so, she noted the Veteran had an isolated and acute episode of bronchitis while in service that was treated and resolved with no evidence of residuals. Further, she noted that his separation examination did not mention any evidence of COPD, chronic bronchitis, or any other respiratory disorder. Therefore, she found the Veteran's long history of smoking was likely the cause of his COPD. Nevertheless, the Board finds that another medical opinion is necessary. Given the fact that VA has conceded the Veteran was exposed to herbicide agents, namely Agent Orange, the examiner should have also considered whether his in-service exposure caused or contributed to his diagnosed COPD. Therefore, remand is necessary for a medical opinion that addresses whether the Veteran's COPD was directly caused by his military service, including his exposure to herbicide agents. Lastly, as noted above, the condition cannot be presumptively service connected under the PACT Act. Moreover, the Board notes that in sub-regulatory guidance accompanying the PACT Act, VA has identified disabilities that have not been shown to have any positive association with herbicide exposure as those where a TERA examination is not required. VBA Letter 20-22-10. COPD is included in the list of disabilities that the Secretary has determined have no positive association with herbicide exposure. Id. at 12. Thus, the Board is not remanding for a TERA examination, only an opinion that addresses direct service connection due to exposures during the Veteran's military service. The matters are REMANDED for the following action: The AOJ should obtain a VA medical opinion to determine the nature and etiology of the Veteran's COPD. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. It should be noted that the Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, during his military service. The examiner should opine as to whether the Veteran had COPD that is related to his military service, to include his herbicide exposure therein (regardless of the fact that such an association may not be presumed). In doing so, the examiner should address the Veteran's treatment of bronchitis and pneumonia during service. While it may be necessary to note the Veteran's long history of tobacco use, the examiner should consider hearing testimony that indicates he stopped smoking in 2000. He or she should also consider and address the assertions that he actually had COPD in service rather than pneumonia or bronchitis. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Ann K. Minami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.