Citation Nr: 20005334 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-08 920 DATE: January 23, 2020 REMANDED Entitlement to service connection for a lung disorder due to herbicide and/or asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Navy from November 1962 to July 1966 and from August 1966 to February 1967. This matter is on appeal from a May 2012 rating decision. The Board notes that a claim for a disability includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board notes that the Veteran’s in December 2011 filed a claim for service connection for lung cancer due to Agent Orange. Review of the Veteran’s medical treatment record shows diagnoses for chronic pulmonary obstructive disease (COPD) and bronchiectasis, but no diagnoses for lung cancer. In a June 2012 notice of disagreement (NOD) and December 2013 statement, the Veteran requested reconsideration for service connection for bronchiectasis and also asserted that asbestos exposure on the ship he served on caused his disability. As such, the Board will recharacterize the claim as to consider whether the Veteran is entitled to service connection for a lung disorder due to herbicide and/or asbestos exposure. The Board finds that additional development is warranted before adjudication of the Veteran’s appeal. The Veteran asserts that his current lung disorder is related to in-service exposure to Agent Orange, herbicide, and/or asbestos exposure. Review of the medical treatment record show current diagnoses for COPD and bronchiectasis. The Veteran underwent a left upper lobectomy in December 2001 to treat preoperative diagnoses of intractable hemoptysis and bronchiectasis of the left upper lobe. The Veteran asserted that he served off the coast of Vietnam and was on a ship in Vietnam inland waters; therefore, he was exposed to herbicides during this period. In a February 2017 form 9 statement, the Veteran also stated that he was exposed to asbestos while working below decks on the ship while it was undergoing a front job from 1964 to 1965. The Veteran asserted these exposure lead to his current lung disorder. Review of the Veteran’s military personnel records show the Veteran served on the USS Vesole (DD-878) from October 1964 to June 1966. The USS Vesole is included on VA’s list of Navy and Coast Guard Ships associated with service in Vietnam and Exposure to Herbicides, which was updated in October 2019. The list indicates that the USS Vesole operated on the Saigon River during a period from December 1965 to February 1966. As such, in the absence of affirmative evidence to the contrary, the Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange. 38 C.F.R. § 3.307 (a)(6). At this time, the Board makes no factual finding regarding the contention of asbestos exposure. The Board notes that neither COPD nor bronchiectasis is recognized by VA as a presumptive disability related to exposure to herbicide agents. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). However, even if a veteran is not entitled to presumptive service connection for a disease claimed as due to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of the claims record shows that there is no VA examination held regarding the nature and etiology of the Veteran’s claimed lung disorder. As such, the Board finds that remand is warranted to obtain an examination and opinion for the Veteran’s claimed disability. The matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records pertinent to the Veteran’s lung disorder and associate those documents with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his lung disorder. If possible, the examination should be conducted by a pulmonologist. The examiner must review the entire claims file, to include a copy of this remand, in conjunction with the examination. In completing this examination, the examiner is asked to respond to the following: (a.) Identify the Veteran’s current lung disorder diagnoses. The Board notes the record reveals current diagnoses of bronchiectasis and COPD. (b.) For each diagnosed disorder, the examiner is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s lung disorder arose in service or is etiologically related to his military service, to include exposure to herbicide agents and asbestos. For the purposes of this opinion, exposure to herbicide agents, to include Agent Orange, and asbestos should be presumed. (c.) A complete rationale for all opinions expressed should be provided. The examiner is advised that it is insufficient to conclude that any diagnosed lung disorders are not directly caused by herbicide exposure solely because it is not on the list of diseases presumptively associated with herbicide exposure. (d.) If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.