Citation Nr: 1732167 Decision Date: 08/09/17 Archive Date: 08/16/17 DOCKET NO. 02-19 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for skin cancer, claimed as due to exposure to herbicide agents. 2. Entitlement to an initial rating in excess of 10 percent for pulmonary emphysema. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Natasha Ravisetti, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and September 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted service connection for pulmonary emphysema with an initial 10 percent rating, effective July 17, 2001, and denied service connection for skin cancer, respectively. In a February 2007 decision, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for pulmonary emphysema for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, the Agency of Original Jurisdiction (AOJ) issued a SOC in March 2008 and the Veteran perfected his appeal of such issue in an April 2008 substantive appeal, in which he requested a Board hearing. As such, in a February 2010 decision, the Board remanded such issue in order to afford the Veteran his requested Board hearing. Thereafter, while he withdrew his request for a Board hearing in March 2015, he was nonetheless scheduled for a hearing in August 2015 and was notified in a June 2015 letter. Thereafter, he again withdrew his request for a Board hearing later in June 2015. Therefore, such matter is properly before the Board at this time. In this regard, the Board notes that, following the issuance of the March 2008 SOC, additional evidence, to include VA treatment records dated through December 2016, referable to the Veteran's claim for a higher initial rating for pulmonary emphysema has been associated with the record and the Veteran has not waived AOJ consideration of such evidence. However, as such claim is being remanded, the AOJ will have an opportunity to review all of the newly received evidence such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. With regard to the Veteran's claim for service connection for skin cancer, the Board also remanded such issue in February 2010 for the issuance of a SOC pursuant to Manlincon, supra. Thereafter, a SOC was issued in December 2010 and the Veteran perfected his appeal of such issue in January 2011. While the Veteran requested a Board hearing in connection with such claim, he had already testified in regard to such matter at a November 2009 Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2015, the Board remanded such claim for additional development and it now returns for further appellate review. Also, as the Veterans Law Judge who conducted the November 2009 hearing had since retired, the Veteran was provided with an opportunity to testify at another Board hearing before a different Veterans Law Judge in an April 2017 letter; however, in correspondence received later that month, he declined. The Board notes that, in June 2012, the issues of entitlement to service connection for joint pain in the hands, legs, and feet, and a disability manifested by loss of balance were remanded for additional development; however, such issues are still pending at the AOJ and have not been recertified to the Board. In this regard, the June 2012 remand directed the AOJ to notify the Veteran of the evidence needed to substantiate his claims, conduct any additional development deemed necessary, readjudicate the claims and, if they remain denied, to issue a supplemental statement of the case (SSOC). However, to date, no SSOC has been issued and the claims have not been recertified to the Board. Therefore, the Board declines jurisdiction of them at the present time. The Board also observes that the Veteran was previously represented in his appeal by an attorney; however, in October 2015, the attorney withdrew his representation as he was retiring from the practice of law. Therefore, the Veteran is unrepresented in the current matter. The issue of entitlement to an initial rating in excess of 10 percent for pulmonary emphysema is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, in one of the units designated by the Department of Defense as having served in or near the Korean demilitarized zone (DMZ), or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft, and, thus, he is not presumed to have been exposed to herbicide agents. 2. Skin cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for skin cancer have not been met. §§ 1101, 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2016). VA's duty to notify was satisfied by a June 2008 letter, sent prior to the issuance of the rating decision on appeal. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In the instant case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue decided herein has been obtained. The Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered. He has not identified any additional, outstanding records that have not been requested or obtained. The Board notes that the Veteran has not been provided with a VA medical examination and/or opinion regarding his claim for service connection for skin cancer; however, the Board finds that such is not necessary in the instant case. In this regard, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the instant case, as will be discussed below, there is no evidence that the Veteran was exposed to herbicide agents during service and no indication that his skin cancer is otherwise related to service. Id. In this regard, the Veteran has only claimed that his skin cancer is the result of exposure to herbicide agents. He has not alleged that such is otherwise the result of his military service or that he has had a continuity of skin cancer symptomatology since service. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. The Veteran also offered testimony before a Veterans Law Judge at a Board hearing in November 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the November 2009 hearing, the Veterans Law Judge noted the issue on appeal. Also, information was solicited regarding the Veteran's in-service experiences he alleges resulted in his skin disorder, to include the circumstances surrounding his alleged exposure to herbicide agents; the type and onset of symptoms; and his contention that his skin cancer is related to such claimed exposure to herbicide agents. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. Furthermore, as a result of the Veteran's hearing testimony, the Board remanded the case in order to obtain outstanding treatment records, and to attempt to verify his claimed exposure to herbicide agents. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board finds there has been substantial compliance with the Board's February 2010 and September 2015 remand directives and no further action in this regard is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008)(holding that only substantial, and not strict, compliance with a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)). In this regard, the Board remanded the Veteran's claim in February 2010 for the issuance of a SOC, which was provided in December 2010. Further, in September 2015, the Board remanded the case in order to obtain any outstanding records pertinent to the claim, request a statement from the Veteran as to whether he went ashore when his ship was docked at Cam Ranh Bay, and undertake any additional development necessary to determine whether Cam Ranh Bay is an inland waterway for purposes of the presumption of exposure to herbicide agents. Subsequently, in September 2016 letters, the AOJ requested the Veteran identify any outstanding treatment records referable to his claim, and provide a statement as to whether he went ashore while docked in Cam Ranh Bay. However, the Veteran did not respond to such letters. Even so, the AOJ obtained updated VA treatment records. Furthermore, while it does not appear that the AOJ undertook any specific development so as to determine whether Cam Ranh Bay is an inland waterway for purposes of the presumption of exposure to herbicide agents, VA updated its policy in VA's Adjudication Procedure Manual (Manual or M21-1) in February 2016 to state that service aboard a ship that anchored in a deep-water costal harbor, such as Da Nang, Vung Tau, Qui Nhon, Ganh Rai Bay, or Cam Ranh Bay, along the Republic of Vietnam coast does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides, unless the evidence of record confirms the veteran went ashore during anchorage. M21-1, IV.ii.2.C.3.m; M21-1, IV.ii.1.H.2.c. Accordingly, the Board finds that there has been substantial compliance with the Board's prior remand directives, and no further action in this regard is necessary. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as a malignant tumor, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam, or in or near the Korean DMZ during specified periods of time, are presumed to have been exposed to herbicide agents. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). As relevant to the instant case, skin cancer is not among such diseases. However, notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In the instant case, the Veteran does not claim to have been exposed to herbicide agents in or near the Korean DMZ, or around C-123 aircraft. Rather, he alleges that he was exposed to herbicide agents while serving aboard the U.S.S. Boxer in the waters of Vietnam. In this regard, service in the official waters off the coast of Vietnam does not constitute "service in the Republic of Vietnam." See VAOPGCPREC 27-97; see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upholding VA's interpretation of the applicable regulations as requiring that a veteran must actually have been present on the landmass or inland waters of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure). In Gray v. McDonald, 27 Vet. App. 313 (2016), the Court held that VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) designating Da Nang Harbor as an offshore, rather than an inland, waterway (even though Quy Nhon Bay and Ganh Rai Bay were designated as brown water) was inconsistent with the purpose of the regulation and does not reflect the Agency's fair and considered judgment. The Court in Gray found that VA's designations of what areas constituted inland waterways/brown water, and what areas constituted blue water (off shore) were arbitrary because no defined parameters had been set and the Secretary could provide no reasonable basis for finding that Da Nang Harbor was blue water when Quy Nhon Bay and Ganh Rai Bay were considered inland waterways. Although the Court in Gray found VA's definition of inland waterways irrational and not entitled to deference, it noted that VA retained its discretionary authority to define the scope of the presumption of herbicide exposure. Haas, supra, made it clear that VA may draw a line between blue and brown water while leaving the specific line drawing to VA discretion. As such, the Court vacated and remanded the matter for VA to reevaluate its definition of inland waterways. In light of the decision in Gray, VA amended its Manual with clear guidance as to how VA defines "inland waterways" and which bodies of water in Vietnam constitute inland waterways. In this regard, according to the Manual, inland waterways are classified as fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features, as described below. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. M21-1, IV.ii.1.H.2.a. Further, the following locations meet the criteria for inland waterways of the Republic of Vietnam: all rivers, from their mouth on the coast, or junction with adjoining coastal water feature, and throughout upstream channels and passages within Vietnam; rivers ending in bays or other offshore water features on the coastline end at a notional boundary line drawn across the junction between the river and the offshore water feature; the Mekong River and other rivers with prominent deltas begin at a line drawn across the mouth of each inlet on the outer perimeter of the landmass of the delta; all streams; all canals; and all navigable waterways inside the perimeter of land-type vegetation (e.g., trees and grasses, but not seaweed or kelp). This is particularly applicable to marshes found in the Rung Sat Special Zone and other Vietnam coastal areas. M21-1, IV.ii.1.H.2.d. Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. M21-1, IV.ii.1.H.2.b. The Manual specifically notes that the following locations are considered to be offshore waters of the Republic of Vietnam: Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and Ganh Rai Bay. In this regard, it was noted that VA previously extended the presumption of exposure to herbicides to veterans serving aboard U.S. Navy and other vessels that entered Qui Nhon Bay Harbor or Ganh Rai Bay. In the interest of maintaining equitable claim outcomes among shipmates, VA will continue to extend the presumption of exposure to veterans who served aboard vessels that entered Qui Nhon Bay Harbor or Ganh Rai Bay during specified periods that are already on VA's "ships list." VA will no longer add new vessels to the ships list, or new dates for vessels currently on the list, based on entering Qui Nhon Bay Harbor or Ganh Rai Bay or any other offshore waters. M21-1, IV.ii.1.H.2.c. Further, as of February 2, 2016, the VA herbicide exposure "ships list" was also updated to reflect the M21-1 amendments. The amended background section of the document, entitled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, states as follows: According to 38 CFR § 3.307(a)(6)(iii), eligibility for the presumption of Agent Orange exposure requires that a Veteran's military service involved "duty or visitation in the Republic of Vietnam" between January 9, 1962 and May 7, 1975. This includes service within the country of Vietnam itself or aboard a ship that operated on the inland waterways of Vietnam. However, this does not include service aboard a large ocean-going ship that operated only on the offshore waters of Vietnam, unless evidence shows that a Veteran went ashore. Inland waterways include rivers, canals, estuaries, and deltas. They do not include open deep-water bays and harbors such as those at Da Nang Harbor, Qui Nhon Bay Harbor, Nha Trang Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, or Ganh Rai Bay. These are considered to be part of the offshore waters of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea. As relevant to the instant case, the record reflects that the Veteran has documented service on the USS Boxer from July 1965 to July 1967. His service personnel records reflect that he received the Vietnam Service Medal with 2 bronze stars and the Armed Forces Expeditionary Medal for operations in Vietnam from September 9-16, 1965. A review of the Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, found at M21-1, IV.ii.1.H.2.a., reveals that the USS Boxer docked to pier at Cam Ranh Bay on September 9, 1965. In this regard, such ship is found in the below category: III. Ships that docked to shore or pier in Vietnam This category includes large ocean-going ships of the Blue Water Navy that entered an open water harbor and docked to a pier or otherwise docked to the shore of Vietnam. As a result of this docking, it is assumed that crewmembers had the opportunity to go ashore for a work detail or for liberty leave. Therefore, any Veteran aboard the ship at the time of docking will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the evidence of record confirms a current diagnosis of basal cell carcinoma; however, such does not show, and the Veteran does not contend, that his skin cancer had its onset during service, within one year of his service discharge, or is related to any aspect of his military service other than his alleged exposure to herbicide agents. The Veteran also does not contend that he had continuity of symptoms of skin cancer since service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnoses referable to skin cancer, and he reported that he first became aware of his skin cancer in approximately the early 2000's. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, the Veteran contends that his skin cancer is related to alleged exposure to herbicide agents, to include Agent Orange, while serving aboard the U.S.S. Boxer in the waters of Vietnam. In this regard, in documents of record and at his November 2009 Board hearing, the Veteran contends that, when serving aboard the U.S.S. Boxer from September 9-16, 1965, the ship docked in Cam Ranh Bay, at which time he was asked to guard the perimeter of the ship using an assault boat. He further alleges that such ship also docked at Qui Nhoh Bay, and he witnessed herbicides being sprayed on him and his shipmates from above, appearing as 'red rain,' during his service aboard the U.S.S. Boxer. With regard to the Veteran's allegation that he was exposed to herbicide agents while the U.S.S. Boxer was docked in Cam Ranh Bay, which, as noted above, occurred on September 9, 1965, the presumption of exposure to herbicide agents will only be extended to a veteran if he went ashore. As such, the Board remanded the claim in September 2015 in order obtain a statement from the Veteran as to whether he went ashore when his ship was docked at Cam Ranh Bay in September 1965. Thereafter, in September 2016, the AOJ requested such information from the Veteran; however, he did not reply to the letter. Consequently, there is no evidence that the Veteran went ashore while the U.S.S. Boxer was docked at Cam Ranh Bay on September 9, 1965. Furthermore, while the Veteran has reported serving in attack boats while the ship was docked, there is no indication that he travelled to the inland waterways of Vietnam, as defined above, in such capacity. Rather, he reported patrolling the perimeter of the U.S.S. Boxer while such was docked in Cam Ranh Bay, which, per the above guidance, is not an inland waterway of Vietnam. Pertinent to the Veteran's report that he was exposed to herbicide agents while the U.S.S. Boxer was docked at Qui Nhoh Bay, there is no evidence that such docking ever occurred. Furthermore, as noted above, Qui Nhoh Bay is not considered an inland waterway of Vietnam. Finally, while the Veteran has reported witnessing herbicide agents being sprayed on him and his shipmates from above, appearing as 'red rain,' he is not competent to report that what he saw 'raining down' was an herbicide agent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007). Consequently, as the Veteran did not serve in the Republic of Vietnam, in one of the units designated by the Department of Defense as having served in or near the Korean DMZ, or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft, he is not presumed to have been exposed to herbicides agents. Furthermore, his skin cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. Therefore, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for skin cancer. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for skin cancer is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's initial rating claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. By way of background, the Veteran has appealed with respect to the propriety of the initially assigned rating for his pulmonary emphysema, which has been assigned a 10 percent rating, effective July 17, 2001. As noted in the Introduction, following the issuance of the March 2008 SOC, additional evidence, to include VA treatment records dated through December 2016, addressing the Veteran's lung disorder, has been received. In this regard, when the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board a supplemental statement of the case must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). Accordingly, as the evidence added to the file since the March 2008 SSOC is pertinent to the Veteran's initial rating claim and AOJ consideration of this evidence has not been waived, the claim must be returned to the AOJ for consideration of such newly received evidence. Furthermore, upon a review of the record, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the nature and severity of his pulmonary emphysema. In this regard, the Board observes that he was last examined by VA in December 2005. However, since such time, VA treatment records reflect that the Veteran developed a lung infection in approximately June 2013 and was diagnosed with mycobacterium avium complex in December 2013. Further, such records reflect ongoing treatment for such infection as well as chronic obstructive pulmonary disease (COPD) as demonstrated by subsequent VA treatment records. Additionally, the Veteran has reported an increase in his coughing and shortness of breath, and felt more fatigued and weak, to include as recently as June 2016 and July 2016. Further, in July 2016, he was diagnosed with refractory right upper lobe mycobacterium avium complex with cavity and nodules, and moderate COPD and, in August 2016, was provided with home oxygen therapy. Therefore, as the evidence suggests that the Veteran's pulmonary emphysema symptomatology may have increased in severity since the December 2005 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, it is unclear whether the Veteran's diagnosed mycobacterium avium complex and COPD are related to his pulmonary emphysema and, if not, whether it is possible to separate the effects of the former disorders from those of the latter disability. In this regard, the Court has held that when a veteran has both service-connected and nonservice-connected disabilities, VA must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Finally, as noted in VA treatment records dated from 2013 to 2016, the Veteran has sought private treatment for his pulmonary emphysema and lung infection, to include through Drs. Lucas and Sullivan. Therefore, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claim on appeal that have not been obtained. Thereafter, all identified records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his pulmonary emphysema and/or associated lung conditions, to include those from Drs. Lucas and Sullivan. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded a VA examination so as to determine the nature and severity of his pulmonary emphysema. The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), to include pulmonary function testing (PFTs), and all clinical findings should be reported in detail. The examiner should identify the nature and severity of all manifestations of the Veteran's pulmonary emphysema. Further, he or she should offer an opinion as to whether the Veteran's diagnosed mycobacterium avium complex and COPD are part and parcel of, or caused or aggravated by, his pulmonary emphysema. If mycobacterium avium complex and COPD are determined to be separate conditions unrelated to the Veteran's pulmonary emphysema, the examiner should differentiate the effects of the mycobacterium avium complex and COPD from those of pulmonary emphysema. If he or she cannot do so, it should be so stated. A rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's initial rating claim should be readjudicated based on the entirety of the evidence, to include the evidence received since the issuance of the March 2008 SOC. If the claim remains denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs