Citation Nr: 1306645 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-12 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of lung cancer. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Given the Veteran's contentions and the applicable law, the record is not ready for appellate review. It also appears that there may be outstanding VA treatment records and a VA examination may be necessary. The Veteran contends that his lung cancer and current residuals are the result of exposure to Agent Orange during his active service. The Veteran alleged in a January 2009 statement that, while he was stationed in Okinawa during his active service, he was exposed to Agent Orange and other herbicides while cleaning and repairing equipment that had been sent from Vietnam. The Board presently makes no pronouncement as to the Veteran's assertion of exposure to herbicides, apart from noting that the present evidence does not substantiate this allegation. The Veteran's service information reflects he did not serve in the Republic of Vietnam and that his military occupational specialty (MOS) was in the administrative field. Service treatment records reflect that, upon separation from service, a clinical evaluation of the Veteran's lungs revealed abnormal findings, including prolonged expiration and respiratory rhonchi. At that time, he was diagnosed with questionable chronic obstructive pulmonary disorder (COPD) and advised to stop smoking. Private medical records from June 1989 to February 2007 reflect that the Veteran had a history of lung cancer and surgery as well as a diagnosis of COPD. Private medical records from May 1996 to June 1996 reflect that the Veteran was diagnosed with adenocarcinoma of the left upper lobe of the lung and underwent a left thoracotomy with wedge resection of the lesion of the left upper lobe with left upper lobectomy. In a May 1996 private treatment report, the Veteran reported he worked hanging sheet rock and was exposed to dust and that he smoked about one pack of cigarettes a day. A May 2005 x-ray report revealed findings of status post left thoracotomy and possible COPD. May 2006 x-rays of the chest reflect post surgical changes in the left lung, a superimposed infiltrate in the left lung base which could not be excluded, and a stable appearance of the chest. In a June 2006 private treatment report, the Veteran reported a history of smoking one cigarette a day for the past 20 years, a history of partial lung removal in October 1984 and an onset of cancer in January 1994. Another June 2006 private treatment report reflects that the Veteran reported quitting smoking "a few years ago." A July 2006 private treatment report reflects that the Veteran reported a history of partial left lung removal for "some sort of cancer" and that, since that time, he quit drinking and smoking. Subsequent private medical records reflect a history of lung cancer, surgery and COPD, a diagnosis of questionable COPD and diagnoses of COPD versus congestive heart failure. A September 2006 x-ray report revealed findings of COPD and status post left lobectomy. The duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. In claims for disability compensation, it requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The Court has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In considering the diagnosis of questionable COPD in service, an adequate VA examination and etiology opinion is required to determine whether the Veteran's in-service complaints assessed as questionable COPD is related to the Veteran's subsequent lung cancer and residuals thereof, including a current diagnosis of COPD. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). In addition, as the record reflects that the Veteran reported to a private physician in July 2006 that he was associated with the VA system and his physician suggested he should reinitiate being in the VA system to help with his medication, any outstanding VA records need to be obtained and considered. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent medical treatment records the Veteran adequately identifies as needing to be obtained, including especially, but not limited to, all records of evaluation or treatment he has received from VA for his lung disability. ALL RECORDS THAT ARE NOT DUPLICATES OF THOSE ALREADY IN THE CLAIMS FILE SHOULD BE ASSOCIATED WITH THE CLAIMS FILE. Documentation of all attempts should be included in the file. 2. AFTER THE ABOVE HAS BEEN COMPLETED, the RO/AMC should schedule the Veteran for an examination by an appropriate examiner to determine the current nature and etiology of any residuals of lung cancer. The claims folder and A COPY OF THIS REMAND are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The purpose of the examination is to determine whether the Veteran's post service lung cancer and residuals thereof had their onset during active service or are otherwise related to any incident of service, including the diagnosed questionable COPD. With respect to the review of the claims file, the Board calls the examiner's attention to the following: (a). A September 1971 service treatment report which demonstrated abnormal findings of the lungs, including prolonged expiration and respiratory rhonchi, a diagnosis of questionable chronic obstructive pulmonary disorder (COPD) and the Veteran was advised to stop smoking. (b). The current private medical evidence-and any other relative post service evidence associated with the claims file-demonstrating the Veteran's history of lung cancer, current diagnosis of COPD and history of smoking. The examiner is asked to obtain a history of the Veteran's lung disability and offer an opinion addressing the following questions: (a). Does the Veteran currently have any residuals of lung cancer, to include COPD? If so, please specify the diagnosis (or diagnoses). (b). IF A CURRENT RESIDUALS OF LUNG CANCER, INCLUDING COPD ARE FOUND, the examiner is asked to furnish an opinion as to whether the lung cancer and residuals thereof, including COPD were caused by or a result of the in-service diagnosis of questionable COPD or were otherwise related to the Veteran's active service? PLEASE PROVIDE A FULL EXPLANATION OF THE REASONS FOR EACH OPINION FURNISHED. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. Indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiners have responded to the question posed. If not, the claims file must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. Readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).