Citation Nr: 20046902 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 18-05 701 DATE: July 14, 2020 REMANDED Entitlement to service connection for coronary artery disease, to include as due to exposure to herbicide agents. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicide agents and asbestos. REASONS FOR REMAND The Veteran served on active duty from June 1961 to March 1964. This appeal is before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. 1. Entitlement to service connection for coronary artery disease, to include as due to exposure to herbicide agents 2. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents The Veteran claims service connection for coronary artery disease and diabetes mellitus due to exposure to herbicide agents in service. For certain diseases with a relationship to herbicide agent exposure, such as diabetes mellitus and ischemic heart disease, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In January 2019, the United States Court of Appeals for the Federal Circuit issued a precedential opinion in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), where it held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to service connection under 38 U.S.C. § 1116. Legislation subsequently was enacted that created 38 U.S.C. § 1116A, providing, in part, for a presumption of herbicide agent exposure for veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116A(a)(b). A location is treated as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting a series of points identified in the statute. VA treatment records establish diagnoses of diabetes mellitus and coronary artery disease. The question before the Board is whether the Veteran was presumptively exposed to herbicide agents by his service. Specifically, his service records establish that he served aboard the U.S.S. Cogswell from October 30, 1961 to October 14, 1963. On remand, records must be obtained to determine whether this ship entered the territorial waters of Vietnam between January 9, 1962 and October 14, 1963. 3. Entitlement to service connection for COPD, to include as due to exposure to herbicide agents and asbestos is remanded. The Veteran claims that his COPD is related to exposure to herbicide agents, as well as asbestos and lead paint. COPD is not among the disabilities with which VA recognizes a relationship to herbicide agent exposure. Absent such a presumption, service connection may be established on a direct basis if the evidence shows that current COPD was, in fact, caused by exposure to herbicide agents or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In an October 2015 letter, the Veteran’s private treating physician stated that the Veteran had a history of asbestos exposure aboard his ship in service, which can be directly related to COPD and its exacerbation. In a January 2016 statement, the Veteran reported that he was exposed to asbestos aboard the U.S.S. Cogswell. He stated that his was an old ship. He reported that he was in food service and had to physically store supplies in the bilges, where he could see the asbestos insulation. An opinion was obtained from a VA examiner in March 2016 based on review of the Veteran’s claims file. No treatment records were available for review. The examiner opined that COPD was less likely than not related to in-service asbestos exposure. This opinion was based on the rationale that the most likely etiology of COPD would be a history of smoking or a genetic basis. The examiner explained that asbestos exposure is not expected to cause COPD, as asbestosis typically causes a restrictive lung defect as opposed to an obstructive defect like COPD. VA treatment records subsequently associated with his claims file reflect that the Veteran quit smoking in 1994. In February 2020, the Veteran’s private nurse practitioner opined that the Veteran’s chronic respiratory disease was likely due to his exposure to herbicides and toxic chemicals in service. No rationale was provided. The Board finds that remand is necessary to provide the Veteran with an adequate VA medical opinion. Once VA undertakes to provide an examination, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The March 2016 VA medical opinion was not based on an in-person examination or telephonic interview, but rather was based on a review of the claims file. It is unclear, however, precisely what there was to base an opinion on, given that at the time the Veteran had not yet received care from a VA medical facility, nor had he submitted private treatment records beyond the October 2015 letter from his physician. On remand, the Veteran should be examined either in person or via telephone to obtain an adequate record to base an opinion and address the opinions of his private treatment providers. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Contact the Joint Services Records Research Center, or other appropriate entity, to obtain ship logs and any other relevant information to aid in the determination of whether the U.S.S. Cogswell entered the territorial waters of Vietnam, as described in 38 U.S.C. § 1116A, from January 9, 1962 and October 14, 1963. All attempts to obtain these records must be documented. 3. Obtain an opinion from a qualified VA examiner. The claims file must be reviewed by the examiner. An in-person or virtual examination may be ordered only if the examiner deems it necessary. The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran’s COPD is related to exposure to herbicide agents, asbestos, or other toxin in service. The examiner must address the opinions provided by the Veteran’s private treatment providers. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.