Citation Nr: 20022434 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 17-06 246 DATE: March 31, 2020 REMANDED Service connection for a respiratory disability, including lung nodules due to asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1964 to May 1967 and May 1967 to December 1972, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. The Veteran’s claim of service connection for chronic obstructive pulmonary disease (COPD) has been recharacterized to include all respiratory disabilities reasonably raised by the record including lung nodules due to asbestos exposure. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Following the Veteran’s initial denial to service connection for COPD in July 2014, he submitted an August 2014 Statement in Support of Claim to request reconsideration of the claim, along with private medical records regarding his diagnosed COPD and CT scans showing multiple nodules in his lung. An October 2014 rating decision found the evidence was not material as it failed to indicate the condition is caused by or related to asbestos exposure and/or military service and stated his claim could not be reopened. Following another denial of the service connection claim in December 2014, the Veteran filed a Notice of Disagreement (NOD) in January 2015, which was still within a year of the original July 2014 denial. Procedurally, the Board finds that this claim should be adjudicated de novo, rather than reopening the claim on the basis of a new and material evidence claim. Service connection for a respiratory disability, including lung nodules due to asbestos exposure, is remanded. The Veteran seeks entitlement to service connection for a respiratory disability, to include lung nodules due to asbestos exposure, which he contends began while he served in Navy, during which he served upon the USS Independence and the USS Shenandoah, where he was exposed to asbestos, which in turn led to his diagnosed COPD and lung nodules. The Veteran alternatively asserts that his respiratory disability may be related to in-service Agent Orange exposure while serving in Vietnam. As to herbicide exposure, the Board observes that in a June 2014 rating decision, the RO granted service connection for diabetes mellitus type 2 due to in-service herbicide exposure. In addition, at the November 2019 Board hearing, the Veteran testified that he served in Vietnam, and that in the area where he was stationed, he reported that the use of Agent Orange was “high.” As to his asbestos exposure, the Veteran reports that while aboard the USS Independence, he was assigned to maintenance of the bomb magazines and was required to bring them out of the storage bins, assemble them and take them to the flight line; there were asbestos on the walls and ventilations pipes. See January 2017 Form 9. Further, while on the USS Abbott he moved artillery rounds from magazines to the cannons, again putting him near the asbestos. Aboard the USS Shenandoah, the walls and piping of the ship were also wrapped in asbestos insulation. Id. The Veteran argues that asbestos causes 1/4” sized nodules in the lungs, while tobacco causes charring of the lining of the lungs and not nodules; the Veteran’s nodules should be attributed to the asbestos. Id. The Veteran was afforded a VA examination for respiratory conditions in 2014, in which the examiner confirmed the COPD diagnosis, but found the COPD was less likely as not related to his military service because the Veteran had an extensive smoking history, smoking 1 pack per day for 40 years, and that had more to do with the COPD. See June 2014 VA Examination. Since the VA examination, the Veteran submitted additional documentation that showed there was risk of asbestos exposure on the living quarters and ships he was assigned to during his Navy service. See January 2015 NOD, Military Personnel Record. Further, the Veteran submitted a statement from his private doctor, who, citing the results of diagnostic testing, opined that the Veteran has benign lung nodules as evidence of inhaled foreign objects, and not likely to be from tobacco use. See January 2017 Medical Treatment Record. The Veteran also submits medical records in November 2019, which include results of breathing tests and CT scans that show lung nodules as due to exposure to asbestos. See November 2019 Medical Treatment Records. The Veteran also provided lay testimony at his November 2019 Board Hearing and testified that his respiratory problems were not caused by smoking, and were more likely to do with asbestos exposure, as affirmed by his primary care doctor. He also stated he spend a year in South Vietnam, the area where he was stationed was reported to have a high rate of Agent Orange exposure. See November 2019 Hearing Transcript. The Board finds in light of the lay statements, military personnel records, and medical treatment records, including medical opinions linking the diagnosed COPD and lung nodules to asbestos exposure presumably from military service, submitted after Veteran’s last VA examination, as well as his in-service Agent Orange exposure, a remand is necessary in connection with this claim. In order to make a fully informed decision in adjudicating this claim, a new VA examination by a specialist is warranted to address the new evidence of record. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician, preferably a pulmonologist, to determine the nature and etiology of any current respiratory disorder, to include COPD and lung nodules. The examiner must review the entire claims file, and consider all lay statements, military personnel records, and medical treatment records provided. The examiner should assume that the Veteran was exposed to asbestos during service. The examiner must opine whether any diagnosed respiratory disorder found to be present is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s in-service exposure to both asbestos and Agent Orange. In responding to the above inquiry, the examiner must acknowledge and discuss the January 2017 medical statement written ed by Dr. Joel C. Wood. The examiner must provide reasons for all opinions, addressing the relevant evidence. Absent such, the examination report will be deemed inadequate. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, 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.