Citation Nr: 18151786 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-19 627A DATE: November 20, 2018 REMANDED Entitlement to service connection for lung cancer, to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1958 to December 1983. Regrettably, the Veteran passed away in March 2017 and the appellant is seeking benefits as his surviving spouse and substitute claimant. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for lung cancer, to include as due to herbicide exposure is remanded. The Veteran asserts that his lung cancer should be service connected due to exposure to herbicide agents, specifically Agent Orange. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Agent Orange Act of 1991 requires that when the VA Secretary determines that a presumption of service connection based on herbicide agent exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. The Secretary’s determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. 38 U.S.C. § 1116 (b) and (c). Here, the Veteran’s DD-214 reflects that the Veteran served in the Republic of Vietnam. Accordingly, he is presumed exposed to Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran was diagnosed with esophageal cancer in 2015. This condition is not listed as a disease associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). Accordingly, entitlement to service connection on a presumptive basis is not warranted. The appellant may still establish service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To obtain direct service connection, a Veteran must satisfy a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As stated above, the Veteran has established a diagnosis of esophageal cancer with metastasis to the lungs. Additionally, the Veteran’s service records reflect exposure to Agent Orange as the only claimed in-service event. In a September 2015 correspondence, a private physician familiar with the Veteran’s health communicated to the VA that the Veteran was suffering from metastatic esophageal cancer. The statement also communicated that the cancer may be related to the Veteran’s exposure to herbicide agents. A physician familiar with the Veteran’s health is competent and credible in declaring a diagnosis. Given the fact that the physician providing the opinion is familiar with the Veteran, and that the physician is competent and credible to give such an opinion, the Board affords the statement some probative weight. Nieves-Rodrigues v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran was not provided a VA examination to assess the nature and etiology of the claimed lung cancer disability prior to his death. Similarly, after the Veteran’s death, and upon the substitution of the Veteran’s wife as the appellant, the VA did not obtain any competent or complete opinion with regard to the etiology of the claimed emphysema. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that sufficient evidence is of record to trigger the VA’s duty to obtain a competent medical opinion with regard to any potential etiological relationship between lung cancer and active duty service. The matter is REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran’s claims for service connection. The examiner is specifically requested to review all pertinent records associated with the claims folder. Following such review, the examiner is asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s metastatic esophageal cancer was caused or aggravated by the Veteran’s presumed exposure to herbicide agents. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal, to include entitlement to service connection for lung cancer. If the benefit sought on appeal remains denied, the appellant and her attorney should be provided with a Supplemental Statement of the Case (SSOC) and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hebert, Law Clerk