Citation Nr: 1604053 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 13-21 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a lung disease, to include lung cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to January 1970, which includes service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from August 2010 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran requested a Board hearing before a Veterans Law Judge at the RO by way of videoconference on his July 2013 substantive appeal (VA Form 9). He was notified that his Board hearing had been scheduled for a date in December 2015, this notice was sent to his address of record and was not returned as undeliverable, and a copy of this notice was also sent to his representative. The Veteran failed to appear for the scheduled Board hearing. To the Board's knowledge, he has offered no explanation as to why he failed to appear for the scheduled hearing. Accordingly, the Board will proceed to a decision on this appeal as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83.) In this case, the Veteran contends that he has current lung cancer related to herbicide exposure in Vietnam. A January 2006 VA surgical pathology report includes diagnoses of lung cancer, but the content of the pathology report specifies that there was no active lung cancer. Rather, the pathology findings included patchy-organizing pneumonia and changes associated with emphysema. Thus, there is competent evidence of a current lung disease. Also, as the Veteran served in Vietnam, he is presumed to have been exposed to herbicides, including Agent Orange. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307 (2015). Respiratory cancers are included among the list of conditions for which service connection is presumed on the basis of exposure to herbicides. 38 C.F.R. § 3.309(e) (2015). Hence, the evidence suggests that the Veteran may have a current lung disease related to service. Therefore, VA's duty to obtain an examination as to the nature and etiology of any current lung disease is triggered. Such an examination is needed to determine whether the Veteran has current lung cancer and to obtain a medical opinion as to the etiology of any other current lung disease. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). A May 2004 VA nursing discharge/transfer summary note indicates that the Veteran was reportedly applying for Social Security Administration (SSA) disability benefits for an unspecified disability. Where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The records related to the SSA's determination have not yet been associated with the file and may be relevant. Also, a September 2010 VA pulmonary consultation note reveals that the Veteran was evaluated and treated for lung problems at the VA Medical Center in Durham, North Carolina (VAMC Durham) as early as January 2006 and that he continued to receive subsequent treatment at that facility (including in December 2006, September 2007, and January 2009). There are treatment records from VAMC Durham in the file dated from July 2010 to June 2012 and the only record from this facility dated earlier than July 2010 is the January 2006 surgical pathology report. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Furthermore, a June 2011 VA primary care telephone encounter note reveals that the Veteran received relevant treatment at Sykes Hospital. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with respect to any relevant treatment records from Sykes Hospital. Thus, a remand is also necessary to attempt to obtain any relevant private treatment records. Lastly, following a May 2013 statement of the case, additional relevant VA treatment records from VAMC Durham dated since September 6, 2011 have been associated with the file by the AOJ. Also, none of the treatment records contained in the Salisbury Vista electronic records system are listed in the statement of the case. As additional pertinent evidence was obtained by the AOJ and as this evidence was not considered by the AOJ, the Board is required to remand the issue on appeal for issuance of the necessary supplemental statement of the case. See 38 C.F.R. § 20.1304 (2015) (providing that in certain circumstances, the Board cannot consider evidence in the first instance unless the appellant waives initial consideration by the AOJ). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any records relied upon to make the decision. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for a lung disease, to include the dates of any such treatment. The Veteran shall also specifically be asked to complete authorizations for VA to obtain all records of his treatment for a lung disease from Sykes Hospital (see the June 2011 VA primary care telephone encounter note) and any other sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain records from any private treatment provider for whom a sufficient release is received. All efforts to obtain these records must be documented in the file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. 3. Obtain and associate with the file all updated VA treatment records, to specifically include: (a) all records from VAMC Durham dated from January 1970 through July 2010 and from June 2012 through the present; (b) all records contained in the Salisbury Vista electronic records system and dated from June 2005 through September 2010 and from April 2011 through the present; and (c) all records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. After all efforts have been exhausted to obtain and associate with the file any SSA records and any additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current lung disease. All indicated tests and studies shall be conducted. All relevant electronic records in the VBMS and Virtual VA systems, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner shall answer all of the following questions: (a) Has the Veteran experienced active lung cancer at any time since October 2005? (b) Is it at least as likely as not (50 percent probability or more) that any lung disease diagnosed since October 2005 had its clinical onset in service, had its onset in the year immediately following service, is related to the Veteran's presumed exposure to herbicides in service, or is otherwise the result of a disease or injury in service? In formulating the above opinions, the examiner shall specifically acknowledge and comment on any lung disease diagnosed since October 2005, the Veteran's presumed exposure to herbicides in service, his history of tobacco use, and the January 2006 VA surgical pathology report which includes diagnoses of lung cancer. The examiner must provide reasons for each opinion given. 5. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case that considers all additional relevant evidence (including all treatment records from VAMC Durham dated since September 6, 2011, all records contained in the Salisbury Vista electronic records system, and all additional evidence received since the May 2013 statement of the case). After the Veteran is given an opportunity to respond, the case shall be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2015). The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).