Citation Nr: 1751448 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-15 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lung disability (manifested by spots on the lung and not including asthma), to include as due to exposure to herbicide agents. 2. Entitlement to service connection for post-left-nephrectomy renal cancer, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1966 to November 1968. These matters are before the Board of Veterans'Appeals (Board) on appeal from April 2006 and January 2007 rating decisions of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the claims file. In April 2012 and April 2016, the Board remanded the matters for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board secured a May 2017 VHA medical advisory opinion regarding the etiology of the Veteran's renal cancer; he was provided a copy, and afforded opportunity to respond. His September 2017 statement responding to the medical opinion presented his account of certain facts cited in the opinion that challenged facts cited in support of the opinion by the VHA expert, including regarding his pertinent medical history. Regarding a history of smoking, he explained that he began smoking in service and quit in 1981. Regarding hypertension (as an etiological factor), he stressed that his hypertension was under control. He indicated that he did not abuse anti-inflammatory medication. He also stated that he submitted additional evidence and did not waive AOJ initial consideration of such evidence. Accordingly, the case must be returned to the AOJ for its initial review of the submissions (and any further development necessary). On August 2016 VA examination, the examiner noted that the Veteran's lung nodules were benign and did not constitute a lung disability. He opined that the Veteran did not have a lung malignancy connected to Agent Orange and observed that there is no evidence that benign lung nodules are due to exposure to Agent Orange. In his September 2017 statement the Veteran notes that (as of August 23, 2017) a bronchoscopy showed he had spots (on the lung) related to renal cell carcinoma and a tumor, and that a provider at Hines VA wanted to remove a lung nodule, part of the right lung, and some lymph nodes. A review of the Veteran's file did not locate the report of the bronchoscopy or associated treatment records. The most recent VA treatment records in the file are from July 2016. As records of treatment since may contain pertinent information, and because VA treatment records are constructively of record, they must be sought. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record complete clinical records of all VA evaluations or treatment the Veteran has received for renal cancer (and residuals) and for lung disability (i.e., any such records not already associated with the record), to specifically include records of a bronchoscopy at Hines VAMC since July 2016. If any such records are unavailable, the reason for their unavailability must be explained in the record. 2. The AOJ should review the September 2017 argument and submissions by the Veteran, arrange for any further development deemed necessary, and readjudicate the claims. If a further VA examination/medical opinion is deemed necessary, such should be arranged. Thereafter, the AOJ should readjudicate the claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GEORGE R. SENYK 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) (2017).