Citation Nr: 1623278 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 14-02 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for skin cancer. 2. Entitlement to service connection for a lung disability, to include as due to in-service asbestos exposure. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service with the U.S. Navy from August 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the Board at a November 2015 hearing conducted via videoconference. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts service connection for skin cancer and a lung disability. Specifically, he asserts his skin cancer, affecting various parts of his body, is due to lengthy sun exposure during his service in the Navy. He also asserts that he suffers from a lung condition due to exposure to asbestos while serving aboard Navy ships. Initially, the Board notes the Veteran testified at the November 2015 Board hearing that he receives treatment, particularly for his lung condition, at VA facilities. However, to date, these records have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Any outstanding VA treatment records must be obtained and associated with the claims file prior to adjudicating the appeal on the merits. In addition, the Board observes the Veteran has not been provided a VA examination in conjunction with either service connection claim. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2015); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the evidence of record, as well as the Veteran's testimony, the Board believes VA examinations are warranted in this case in order to obtain etiological opinions. Finally, an October 2013 rating decision denied service connection for PTSD. In his January 2014 substantive appeal (VA Form 9), the Veteran also indicated he wishes to appeal the previous denial of PTSD. As this form was received within one year of the October 2013 rating decision, constitutes a notice of disagreement (NOD) with respect to this issue. The AOJ has not issued a statement of the case (SOC) to the Veteran which addresses his NOD as it pertains to this issue. When a timely notice of disagreement has been filed, the claim must be remanded to the AOJ. Manlincon v. West, 12 Vet. App. 238 (1999). Appropriate action, including issuance of an SOC, is now necessary with regard to this issue. 38 C.F.R. § 19.26 (2015). The Veteran will then have the opportunity to file a timely substantive appeal if he wishes to complete an appeal. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case with respect to the issue of entitlement to service connection for PTSD. All appropriate appellate procedures should then be followed. The Veteran should be advised that he must complete his appeal of this issue by filing a timely substantive appeal following the issuance of a statement of the case. 2. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, records related to treatment for skin cancer and a lung disorder must be obtained. Efforts to obtain these records must be documented with the claims file and continue until a negative reply is received or it is reasonably determined further attempts would prove futile. 3. Ensure complete development of the Veteran's assertion of in-service exposure to asbestos. See generally M21-1 Part IV.ii.1.I.3. A memorandum addressing the likelihood of asbestos exposure should then be associated with the claims file. 4. Following the above, schedule the Veteran for an appropriate VA examination to address the nature and etiology of his claimed skin cancer. The entire claims file, including this REMAND, but be provided to the examiner for review, and the examination report should reflect such a review was accomplished. Any clinically indicated testing and/or consultation should be performed. Following a review of the claims file, and physical examination of the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's current skin cancer had its onset or is otherwise etiologically related to his period of active service. In offering this opinion, the examiner must specifically discuss the Veteran's assertion of lengthy periods of sun exposure while in service. A complete rationale must be provided for any opinion expressed, including a discussion of the evidence of record and medical principles which led to the conclusions reached. 5. Schedule the Veteran for an appropriate VA examination to address the nature and etiology of his claimed lung disorder. The entire claims file, including this REMAND, should be provided to the examiner for review, and the examination report should reflect such a review was accomplished. Any clinically indicated testing and/or consultation should be performed. Following a review of the claims file, and physical examination of the Veteran, the examiner is requested to provide a diagnosis of any current lung disability and, for each diagnosed condition, offer an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the such lung condition had its onset or is otherwise etiologically related to his period of active service. In offering this opinion, the examiner must specifically discuss the Veteran's assertion of in-service asbestos exposure. A complete rationale must be provided for any opinion expressed, including a discussion of the evidence of record and medical principles which led to the conclusions reached. 6. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed 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 2014). _________________________________________________ GAYLE E. STROMMEN 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).