Citation Nr: 1323259 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 11-06 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from September 1973 to May 1975. This appeal to the Board of Veterans' Appeals (Board) is from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Jurisdiction of this case was subsequently transferred to the RO in Detroit, Michigan. The issue of special monthly pension on the basis of being housebound has been raised by the Veteran's representative in a March 2013 Informal Hearing Presentation, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 When determining whether a VA examination and medical opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran seeks service connection for lung cancer, for which he was diagnosed in May 2007. He claims his lung cancer was caused by exposure to ethylene oxide, which was used as an avian stressing agent to control the blackbird and starling populations at Fort Campbell, Kentucky, while he was stationed there. As he has a current diagnosis of lung cancer and he has submitted evidence linking ethylene oxide to certain forms of cancer, the Board finds he merits a VA compensation examination. Also, VA treatment records in the claims file begin in September 2007. These records indicate he was diagnosed with lung cancer at a VA facility in May 2007. As such, the Board believes there are missing treatment records. Records generated by VA facilities that may impact the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims files. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand the AMC should obtain any unassociated VA treatment records, as set forth below. Additionally, the evidence reveals the Veteran has been receiving Social Security Administration (SSA) disability benefits since November 2007. However, SSA's actual disability determination and all supporting records have not been obtained or requested by the RO. Such records may be relevant to the Veteran's claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2); Hayes v. Brown, 9 Vet. App. 67 (1996). On remand, the RO should make every effort to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from the Detroit VA Medical Center, dated since January 2007. 2. Make arrangements to obtain the Veteran's Social Security Administration (SSA) records, including all disability determinations and supporting records. If the RO is unable to obtain these records and concludes that further efforts would be futile, all records requests must be documented, a formal finding of unavailability should be issued, and the Veteran informed of this fact, in accordance with the above directives. 3. Thereafter, schedule the Veteran for a VA examination of his lung cancer with an appropriate clinician. The claims file should be made available to and reviewed by the examiner. All indicated tests should be completed. The examiner must determine whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's lung cancer is related to any incident of service, to include any potential exposure to ethylene oxide. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Then, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. Finally, readjudicate the Veteran's claim for service connection for lung cancer. If the claim remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response. 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). 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). _________________________________________________ P.M. DILORENZO 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).