Citation Nr: 21068650 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 19-14 995 DATE: November 12, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and emphysema and as due to asbestos exposure and/or herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1961 to March 1966. In September 2019, the Board remanded the issues of service connection for hearing loss, tinnitus, and COPD, to include as due to asbestos exposure, for additional evidentiary development. The issues of service connection for hearing loss and tinnitus were granted in an April 2020 VA rating decision, which represents a full grant of the benefits sought so they are no longer on appeal before the Board. Based on the February 2020 VA examination report and medical opinion, the Board has recharacterized the Veteran's claim for COPD more broadly to a respiratory disorder, to include COPD and emphysema, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). This remaining issue on appeal has been returned to the Board for appellate review. The Board acknowledges that at the time VA received the Veteran's formal request for service connection for COPD, VA also received his submission of private treatment records showing diagnoses of COPD, diffuse airway and emphysema disease, bronchitis, and maxillary sinusitis. If the Veteran wishes to claim entitlement to service connection for a respiratory disorder (other than COPD and emphysema), he is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2020). Entitlement to service connection for a respiratory disorder, to include COPD and emphysema and as due to asbestos exposure and/or herbicide exposure In the September 2019 Board remand, the Veteran's contention that his COPD is a result of asbestos exposure during active service while aboard the USS Oriskany was noted. The agency of original jurisdiction (AOJ) was directed to, in part, to verify whether the Veteran was exposed to asbestos during military service. In October 2019, the AOJ sent the Veteran a letter asking him to provide additional information about his exposure to asbestos. In November 2019, the Veteran, through his attorney, provided responses. Review of the claims file shows that the AOJ did not an attempt to verify whether the Veteran was exposed to asbestos during military service based upon the information he provided. "[A] remand by... the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with that directive of the September 2019 Board remand is necessary prior to appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Since the September 2019 Board remand, the Veteran's attorney also raised the contention that the Veteran's COPD is due to herbicide exposure during while aboard the USS Oriskany which was off the coast of Vietnam during his period of active service. In a November 2019 correspondence, the Veteran submitted an illegible copy of the USS Oriskany ship log and noted that he was on the "1965 wes pac cruise." In light of such contentions, remand is warranted for further development and determination by the AOJ in the first instance as to whether the Veteran had service within the 12 nautical mile territorial sea of the Republic of Vietnam based on his service aboard the USS Oriskany. The matter is REMANDED for the following actions: 1. Determine whether the Veteran had exposure to asbestos while he was aboard the USS Oriskany from May 1964 to March 1966, including based upon his attorney's November 2019 responses to the October 2019 letter asking the Veteran to provide information about his asserted asbestos exposure. The AOJ must specifically document the attempts that were made to verify the Veteran's in-service exposure to asbestos. 2. Determine whether the USS Oriskany was in the territorial seas within 12 nautical miles of the Republic of Vietnam while the Veteran was aboard. Such action may include consideration of the Veteran's submission of a deck log from the USS Oriskany. The AOJ must specifically document the attempts that were made to verify the Veteran's in-service exposure to herbicides. 3. Then, if an only if the AOJ finds that the Veteran had in-service asbestos and/or herbicide exposure (due to the USS Oriskany being within 12 nautical miles of Vietnam), provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's COPD and emphysema. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's COPD began during active service or is related to an incident of service, to include the presumed in-service asbestos exposure and/or herbicide exposure. (b.) Whether it is at least as likely as not that the Veteran's emphysema began during active service or is related to an incident of service, to include the presumed in-service asbestos exposure and/or herbicide exposure. Note - It is not sufficient to provide an opinion that the Veteran's COPD and emphysema are not directly due to herbicide exposure merely because it is not on the list of diseases and conditions presumptively linked with exposure to herbicide agents. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner 4. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 5. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.