Citation Nr: 21071429 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-29 490 DATE: November 30, 2021 REMANDED Service connection for the cause of the Veteran's death. REASONS FOR REMAND The Veteran served on active duty from June 1959 to June 1979. The Veteran died in September 2014. The appellant is his surviving spouse. The case is on appeal from a December 2014 rating decision. In August 2021, the appellant testified at a Board hearing. Service connection for the Veteran's cause of death. The appellant contends that the Veteran's cause of death is related to service, including his significant exposure to asbestos. Alternatively, the appellant asserts the Veteran's death is the result of his exposure to herbicides, including Agent Orange, while serving aboard Naval ships located within 12 nautical miles of Vietnam. The Veteran's death certificate lists his cause of death as squamous cell carcinoma of the lungs. Other significant conditions were listed as pneumothorax and chronic obstructive pulmonary disease (COPD). The Veteran's service treatment records (STRs) show that he had breathing difficulty and received treatment for such during service. April and May 1968 STRs showed that in April 1968, the Veteran was hospitalized for asthmatic bronchitis for over one month. An April 1969 STR indicated the Veteran reported asthma. Several STRs dated August 1974 reported that the Veteran received treatment due to asthma and ongoing difficulty breathing. Further, a November 1978 STR indicated the Veteran received treatment for chest pain and a hacking cough, with the examiner providing a diagnosis of bronchitis. The Board notes the Veteran's service personnel records (SPRs) show that he had service aboard several Naval ships, including the USS Braine from February 1960 to July 1964, the USS Somers from October 1967 to April 1968, the USS Nashville from November 1969 to February 1971, the USS Manley from April 1971 to April 1972 and the USS King from October 1976 to May 1977. Additionally, the Veteran had service at Hunters Point Naval Shipyard and Bremerton Puget Sound Naval Shipyard during his lengthy period of service. As noted, along with exposure to asbestos during service, the appellant contends during the August 2021 Board hearing that the Veteran was exposed to Agent Orange during the Vietnam War. With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam, or within 12 nautical miles of its territorial sea, during the Vietnam war, from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. §§ 1116(a)(3), 1116A; 38 C.F.R. § 3.307(a)(6)(iii); Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). The list of diseases associated with exposure to certain herbicide agents includes respiratory cancers, including lung cancer. 38 C.F.R. § 3.309(e). Therefore, the evidence of record supports that the Veteran's immediate cause of death, lung cancer, may be related to his in-service exposure to asbestos, or alternatively, may be caused by potential exposure to herbicides. As such, the Board finds that a remand to attempt to obtain records to determine if the Veteran served aboard a ship during the period of the Vietnam War which came within 12 nautical miles of Vietnam's territorial sea. Additionally, a VA opinion is warranted to determine if the Veteran's lung cancer was related to his in-service asbestos exposure. See 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The matters are REMANDED for the following action: 1. Contact the appropriate service department and/or records custodian and attempt to verify whether the Veteran came within 12 nautical miles of Vietnam during the Vietnam War, including aboard the USS Braine from February 1960 to July 1964, the USS Somers from October 1967 to April 1968, the USS Nashville from November 1969 to February 1971, and the USS Manley from April 1971 to April 1972. 2. Obtain a medical opinion from an appropriate medical professional to determine if the Veteran's lung cancer, which caused his death, is related to service. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lung cancer which caused his death had its onset during, or is otherwise related to, service, to include his exposure to asbestos. The examiner should review and discuss the Veteran's STRs showing in-service treatment for breathing difficulty, to include asthma, bronchitis and chest pain. The examiner should also address the noted asbestos exposure during the Veteran's lengthy period of service, to include aboard his listed Naval ships, as well as during his service at Hunters Point Naval Shipyard and Bremerton Puget Sound Naval Shipyard. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.