Citation Nr: 21021804 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-12 757 DATE: April 14, 2021 REMANDED Entitlement to service connection for respiratory problems, to include chronic obstructive pulmonary disease (COPD) and asthma, as due to exposure to herbicide agents and asbestos is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2018, January 2020, and October 2020, the Board remanded the issue for additional development. Entitlement to service connection for respiratory problems, to include COPD and asthma, as due to exposure to herbicide agents and asbestos. The Veteran contends that his respiratory problems were caused by breathing in asbestos on Naval ships during his service in Vietnam. He also contends that he was exposed to Agent Orange while ashore in Vietnam. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii) (2019). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e) (2019). COPD and asthma are not diseases presumptively associated with Agent Orange herbicide exposure. Id. The VA Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). Accordingly, presumptive service connection for a respiratory disability based on exposure to Agent Orange is not warranted. Nonetheless, a Veteran who suffers from a disability that is not listed among those for which presumptive service connection is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that the phrase “the Republic of Vietnam” includes the 12 nautical mile territorial sea of the Republic Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). The Court in Procopio further noted that territorial seas have a breadth “not exceeding 12 nautical miles.” The Veteran testified that while a crewmember of the USS AJAX (AR-6) he slept on the top bunk of the Naval ship’s sleeping quarters near the ventilation system, potentially breathing in pollutants. See July 2015 Decision Review Hearing transcript. The Veteran’s service records confirm service aboard the USS Ajax (AR-6) from May 5, 1970 to May 11, 1970 but do not provide conclusive proof that the Veteran went ashore the Republic of Vietnam. See personnel records. Moreover, the evidence is incomplete as to whether the Veteran’s service aboard the USS AJAX (AR-6) included service within 12 nautical miles offshore of Vietnam in the territorial waters. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966; see also Procopio, 913 F.3d at 1380-81. Thus, remand is necessary to obtain such information. The Board further finds that a new VA examination is needed. Indeed, at the most recent examination, the November 2020 VA examiner opined that it is less likely than not that the Veteran had asthma predating service. He reasoned that there is no evidence of asthma predating service, and the Veteran’s interim and separation exams were both negative for a respiratory condition such as asthma. The VA examiner noted that the Veteran had no episodes suggestive of asthma in service, at separation, or until 2013; the VA examiner stated that even if childhood asthma predating service were conceded, there is clearly an absence of aggravation. Id. In rendering the opinion above, the examiner used the incorrect legal standard when assessing whether the Veteran’s asthma pre-existed service. See 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b). For pre-existing disabilities, the evidence should show that the disability clearly and unmistakably pre-existed service and that it was clearly and unmistakably not aggravated by service. The Board finds the November 2020 VA opinion to be inadequate for failing to address the Veteran’s lay testimony. See Miller v. Wilkie, 32 Vet. App. 249, 258 (U.S. 2020); see also Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Moreover, regarding a relationship between COPD and Agent Orange, the examiner provided a conclusory statement that is unsupported by any further explanation. Indeed, the examiner simply stated that the fact that Agent Orange does not cause COPD is established medical knowledge and practice. Accordingly, a new examination is necessary upon remand. The matter is REMANDED for the following action: 1. Contact the appropriate record depository to determine (1) if the Veteran went ashore the mainland of Vietnam in Saigon (now Ho Chi Minh City) and (2) whether the USS AJAX (AR-6) served in the territorial sea (a breadth not exceeding 12 nautical miles) of the Republic of Vietnam while the Veteran was serving aboard from May 5, 1970 to May 11, 1970. Obtain the deck logs if necessary and associate any records used to find that the ship was near Vietnam (i.e., in the “official waters”) and used to determine whether the ship was within the 12 nautical mile territorial sea of Vietnam while the Veteran was aboard. 2. After the above development is completed, the Agency of Original Jurisdiction (AOJ) should arrange for a VA examination (or telehealth examination as appropriate) with a new VA examiner to determine the nature and etiology of the Veteran’s COPD. The claim file should be made available to the examiner for their review and the examination report should state that a review of the file was conducted. After a review of the claim file and examination of the Veteran as needed, the examiner should reply to the following questions: (a) The examiner is asked to determine the nature and likely cause of the disability and address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD is related in any way to service to include any exposure to asbestos or herbicide agents. (b) The examiner is also asked to determine: (i) Did the Veteran’s asthma clearly and unmistakably exist prior to service? (ii) If the Veteran’s asthma did clearly and unmistakably pre-exist service, was the asthma clearly and unmistakably not aggravated by his active service? All opinions rendered must be accompanied by a full rationale and must address the Veteran’s statements. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus K. Jones, Associate 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.