Citation Nr: 1800970 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 09-31 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran was on active naval service from April 1973 to April 1979. The Veteran died from lung cancer in October 2005. The Appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By that rating action, the RO denied service connection for the issue on appeal. The Appellant perfected her appeal of this rating action to the Board in August 2009. Jurisdiction of the appeal currently resides with the Roanoke, Virginia RO. The Appellant withdrew her request for a Board hearing in a December 2013 written statement. The Board denied entitlement to accrued benefits and remanded the issue currently on appeal to correct deficiencies of notice and for further development in January 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the issue on appeal. In the January 2014 remand, the Board noted that a temporary file was apparently created at some point during the Veterans lifetime. A May2006 internal email references an appeal at AMC on remand "and a 'temp file." The Board noted that it did not appear that any such records or temp file had been associated with the claim file and requested that a copy of said file, if it exists, be associated with the record. A review of the post-remand development does not show whether a search for said file was conducted, or if conducted, whether said file was located. On remand, a search for this file should be conducted. If no file is available, this should clearly be documented in the record. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, in October 2017, the Veteran's representative submitted a VA Form 646 wherein he advanced various arguments in support of the Veteran's appeal. In the arguments, he specifically challenged the opinion of the February 2017 VA examiner. In so doing, he cited to an article from the National Cancer Institute which directly referenced the causation of non-small cell lung carcinoma in situations similar to the one argued by the Appellant. The Board finds that an addendum opinion which considers the Veteran's representative's arguments including the cited article, is needed. Accordingly, the case is REMANDED for the following action: 1. Associate with the claim file any documents contained within a temporary file referenced in May 2006. All efforts to obtain these documents should be clearly documented in the claim file. If the records are unavailable, a memo delineating the efforts made to obtain them and the reason for the unavailability should be associated with the file. 2. After the development above has been completed, forward the claim file to the February 2017 VA examiner for an addendum etiology opinion. If the February 2017 VA examiner is not available, the file should be forwarded to an equally qualified examiner. The claim file should be made available to the examiner for their review and the report should state a review of the file was conducted. The examiner is requested to specifically consider the arguments set forth by the Veteran's representative in the VA Form 646 of October 2017 to include the article from the National Cancer Institute. After consideration of these documents, the examiner should provide an opinion as to whether radiation exposure and/or asbestos exposure resulted in a medical condition that was either the principal or contributory cause of his death, i.e., non-small cell lung cancer. The examiner is to specifically address the findings in the article cited by the Veteran's representative when issuing their opinion. A complete rationale for all opinions rendered should be provided. 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 appeal must be afforded expeditious treatment. The law requires that all matters 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 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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).