Citation Nr: 22012503 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 16-22 814 DATE: March 4, 2022 REMANDED Entitlement to service connection for a respiratory disability (claimed as lung cancer), to include as due to in-service exposure to an herbicide agent, or in the alternative, secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1970 to January 1972 and from December 1972 to December 1975, to include service in the Republic of Vietnam. He also had additional service of an unverified nature in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In October 2021, the Veteran presented oral testimony in support of his appeal at a Board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. At the hearing, the Veteran and his representative asked the undersigned VLJ to hold the record open for 90 days so that additional evidence could be submitted. This request was granted on the record, and evidence was received by the Board in this time period. As such, the evidence received by the Board after the October 2021 hearing may be considered by the Board in the first instance. 1. Entitlement to service connection for a respiratory disability (claimed as lung cancer), to include as due to in-service exposure to an herbicide agent, or in the alternative, secondary to a service-connected disability, is remanded By way of history, an April 2013 pathology report reflects a diagnosis of malignant melanoma affecting the skin of the left deltoid and right chest. After recurrence of this disability in December 2014, a positron emission tomography/computed tomography (PET/CT) test completed in August 2015 showed that the Veteran's skin cancer had metastasized to the lung and surrounding tissues. Based the evidence outlined above, the Veteran filed the claim from which this appeal stems in October 2015. While the Veteran's claim specifically states his intention to establish service connection for lung cancer, the most probative evidence of record, to include from his treating VA physician, does not reflect a diagnosis of lung cancer or any cancer originating in the lungs; rather, the record reflects that the origin of the cancer affecting his lung is melanoma, for which service connection has been established. Notwithstanding the above, the Board observes that the record for review is replete with evidence showing disabilities other than melanoma affecting the Veteran's lungs. Specifically, VA treatment records include diagnostic test results confirming pleural thickening and multiple lung nodules. Moreover, the file reflects increased respiratory symptoms after radiation treatments for melanoma and episodes of chronic and acute respiratory failure necessitating inpatient VA treatment. Armed with this evidence, the Board has expanded the Veteran's appealed issue as stated on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Downstream from the recharacterization of the Veteran's appealed issues, the crux of such is whether any of the Veteran's lung/respiratory disabilities identified during the appeal period are proximately due to any incident of his active duty, to include his presumed in-service exposure to an herbicide agent, or caused or aggravated by a service-connected disability, to include any medical treatment(s) for such. While the AOJ obtained a medical opinion in November 2015 which ruled out a diagnosis of cancer originating in the lungs, the medical matters outlined above were not addressed. Accordingly, remand is necessary. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of any lung and respiratory disability identified during the appeal period. The examiner is requested to review all pertinent records associated with the file prior to completion of the examination. All testing necessary to address the below matters must be completed. Thereafter, the examiner is requested to address the following: a. Identify all respiratory and lung disabilities present during the appeal period (since October 2015). *If pleural thickening or lung nodules are note identified in part (a), this finding must be reconciled with the medical evidence dated during the appeal period reflecting such diagnoses. *In addressing part (a), the examiner is asked to comment on what disability/disabilities resulted in the Veteran's period of acute and chronic respiratory failure. b. For each disability identified in part (a), provide an opinion concerning whether such is at least as likely as not proximately due to or the result of any incident of service, to specifically include his presumed in-service exposure to an herbicide agent while stationed in the Republic of Vietnam. *In addressing the above, the examiner is reminded that a disability's exclusion from the list of diseases presumed by VA to be associated with in-service herbicide exposure is not dispositive of the etiology of such. c. For each disability identified in part (a), provide an opinion concerning whether such is at least as likely as not caused by a service-connected disability, to include medical treatments for the same. d. For each disability identified in part (a), provide an opinion concerning whether such is at least as likely as not aggravated by a service-connected disability, to include medical treatments for the same. *In addressing parts (c) and (d), the examiner is asked to specifically comment on the probability that radiation treatments for the Veteran's service-connected melanoma with lung metastases caused or worsened any lung/respiratory disability identified in part (a). Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the 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 the particular question. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.