Citation Nr: 1802149 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-03 742 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a pulmonary/respiratory disorder, claimed as lung lesions. 2. Entitlement to service connection for esophageal cancer, claimed as due to herbicide exposure. 3. Entitlement to service connection for lymphoma, claimed as due to herbicide exposure. 4. Entitlement to service connection for colon polyps. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from November 1968 to September 1970. This appeal to the Board of Veterans' Appeals (Board) arose from May and July 2012 rating decisions. The Veteran filed a notice of disagreement (NOD) in July 2012 and a statement of the case (SOC) was issued in January 2014. The Veteran then filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. In February 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. As discussed in further detail below, during that hearing, the Veteran expressed his desire to withdraw certain claims from appellate consideration. As regards characterization of the appeal, the Board notes that the Veteran filed a claim for service connection for lung lesions. However, the medical evidence of record reveals various respiratory symptoms and suggests a possible diagnosis of chronic obstructive pulmonary disorder (COPD). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a service connection claim includes any diagnosed disability that may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and the other information of record. Thus, consistent with the evidence of record and Clemons, the Board has expanded the Veteran's claim to encompass any pulmonary/respiratory diagnosis (as reflected on the title page). While the Veteran previously had a paper claims file, this appeal is now being processed primarily utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. There are additional documents stored electronically in a Virtual VA (Legacy Content Manager) file, consisting of adjudicatory decisions, notification letters, and VA treatment records. All such records have been reviewed. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2)(C) (2012) and 38 C.F.R. § 20.900(c) (2017). The Board's disposition of the claims for service connection for bilateral hearing loss, colon polyps, and lymphoma, as well as the decision on the esophageal cancer claim, are set forth below. The claim for service connection for a respiratory/pulmonary disorder is addressed in the remand following the order; that matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that in August 2015, the Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD), stomach cancer, and esophageal cancer, the latter of which was already on appeal. In an August 2015 letter, the Veteran was informed that his PTSD claim would be processed under the standard claims processing procedures, and that his "claim for esophageal and stomach cancer will be addressed with your appeal." The Board concludes, however, that the Veteran's claim for service connection for stomach cancer is separate and distinct from that for esophageal cancer, as it is a separate disease entity, and, therefore, not part and parcel of the claim currently before the Board. Accordingly, the Board does not have jurisdiction over the claim for service connection for stomach cancer and, as such, it is appropriately referred to the AOJ for development and adjudication. See 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. During his November 2016 hearing, the Veteran expressed his desire to withdraw from appeal the claims of entitlement to service connection for bilateral hearing loss, colon polyps, and lymphoma; the Veteran's desire to withdraw his appeal as to those claims is recorded in the hearing transcript. 2. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 3. Although the Veteran has a current diagnosis of esophageal cancer and is presumed to have been exposed in service to an herbicide agent, his esophageal cancer was not shown during service or for years after service, and the weight of the competent, probative evidence on the question of medical nexus to service weighs against the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the claim for service connection for bilateral hearing loss are met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal as to the claim for colon polyps are met. 38 U.S.C. § 7105(b)(2), (d)(5) ( 2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal as to the claim for service connection for lymphoma are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for service connection for esophageal cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During a pre-briefing conference held prior to the February 2017 hearing, the Veteran expressed his desire to withdraw his appeal as to the issues of entitlement to service connection for bilateral hearing loss, colon polyps, and lymphoma. The Veteran's desire to withdraw his appeal as to these claims is recorded in the hearing transcript. As the Veteran has expressed his desire to withdraw his appeal before the Board, there is effectively no longer any remaining allegation of error of fact or law concerning the issues of entitlement to service connection for bilateral hearing loss, colon polyps, and lymphoma. Accordingly, the Board does not have jurisdiction to review these claims, and they must be dismissed. II. Claim Decided A. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is filed, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, the Veteran chose to participate in the Fully Developed Claims (FDC) program and the notice that accompanies VA Form 21-526EZ informs claimants of the information and evidence necessary to substantiate various types of claims, to include claims for service connection. Further, in a June 2012 notice letter, the RO informed the Veteran of the evidence necessary to substantiate a claim for service connection based on disability due to exposure to an herbicide agent. Thus, the Board finds that the duty-to-notify requirements under 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b) were satisfied. The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim decided herein, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records and VA treatment records (contained in the Virtual VA/Legacy Content Manager file). Also of record and considered in connection with the claim is the transcript of Board hearing, along with various written statements, provided by the Veteran, and by his representative, on his behalf. Notably, there is no evidence or argument indicating any error or omission in the assistance provided. As for the February2017 hearing, the Board notes that, during the hearing, the undersigned enumerated the issues on appeal, to include the matter herein decided, and elicited testimony from the Veteran regarding his theory of the claim. The undersigned also suggested the submission of evidence showing a nexus to service, to include to the Veteran's exposure to an herbicide agent. Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include identification of any prejudice in the conduct of the hearing. The hearing was legally sufficient. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board has considered whether a VA examination was required in connection with the Veteran's claim for service connection for esophageal cancer under the duty-to-assist provisions codified at 38 U.S.C. § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4). In accordance with those provisions, a medical opinion or examination is required if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds, however, that because there is no competent evidence that suggests a link between the Veteran's esophageal cancer and his military service, to include his in-service exposure to an herbicide agent, VA's duty to provide him with a medical examination in this case was not triggered. The Veteran's esophageal cancer was not diagnosed until 2011, approximately 40 years after service. A review of the Veteran's VA treatment records fails to reveal that any medical professional has attributed the esophageal cancer in any way to the Veteran's service, and during his February 2017 hearing, the Veteran himself stated that he had not discussed with, or been informed by, any physician that his esophageal cancer may be attributable to in-service exposure to an herbicide agent. As to the Veteran's belief that his esophageal cancer is a direct result of his Agent Orange exposure, the Board has considered reports issued by the Institute of Medicine (IOM) of the National Academy of Sciences (NAS). Notably, the IOM is contracted by VA to scientifically review evidence on the long-term health effects of Agent Orange and other herbicides on Vietnam veterans and to determine whether the evidence points to a statistically valid association that would suggest or establish a relationship between diseases studied and herbicide use. Based on a July 24, 2009, NAS report entitled "Veterans and Agent Orange: Update 2008," the Secretary of VA determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam is not warranted for, amongst other things, esophageal cancer. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81332-01, 81334 (Dec. 27, 2010). As discussed, the NAS categorized certain other health outcomes as having "inadequate or insufficient evidence to determine whether an association with herbicide exposure exists," which was defined to mean that "the available studies are of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association with herbicide exposure." Id. at 18333. Health outcomes included in this category include specifically "esophageal cancer." Id. In Update 2010 and Update 2012, the NAS similarly found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and esophageal cancer. See 79 Fed. Reg. 20308-13 (April 11, 2014). A review of the NAS's report "Veterans and Agent Orange: Update 2014," notes in that update, only one study provided some evidence for a potential association between esophageal cancer and exposure to herbicides. See Veterans and Agent Orange: Update 2014 at 324, available at https://www.nap.edu/catalog/21845/veterans-and-agent-orange-update-2014. However, in combination with the studies reviewed previously, the NAS determined that "this single new finding did not did not provide adequate evidence to establish an association between exposure to the COIs [(chemicals of Interest)] and esophageal cancer," and found that "[n]o toxicologic studies provide evidence of the biologic plausibility of an association between the COIs and tumors of the esophagus." Id. The Board has considered whether the NAS report triggers VA's duty to assist, but finds that it does not. See McLendon, supra (discussing the evidence required to trigger VA's duty to provide a medical examination or obtain a medical opinion). The NAS report indicates a lack of evidence on the issue of nexus, as opposed to an indication that there may be a nexus. Indeed, by placing esophageal cancer in the category of inadequate or insufficient evidence to determine whether an association exists, the report provides no positive or negative indication that there may or may not be a nexus between the Veteran's esophageal cancer and his presumed exposure to herbicides. As such, the NAS report is insufficient to trigger VA's duty to obtain a medical opinion in this case. Although whether there is evidence indicating that there may be a nexus between service and a claimed disability is a "low threshold", it is not one satisfied by evidence that there is insufficient or inadequate evidence that there may be a nexus. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008) (duty to provide a medical examination is limited to situation where there is, inter alia, "some evidence that 'indicates' that the disability 'may be associated' with the claimant's military service" (quoting 38 U.S.C. § 5103 (d)(2)(B))). As the Veteran has submitted no evidence other than his own statements showing a positive association between esophageal cancer and exposure to Agent Orange, the Board finds that no further development of the Veteran's claim under this theory of entitlement is required as there is no evidence indicating that the Veteran's esophageal cancer may be associated with herbicide exposure. See 38 U.S.C. § 5103A(d)(2); McLendon, supra; 38 C.F.R. § 3.159(c)(4); see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A (d)(2)(B).]"). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with each claim herein decided. As such, there is no prejudice to the Veteran in the Board proceeding to a decision on the claims, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The law further provides that there are certain diseases that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a) (West 2012); 38 C.F.R. § 3.309(e) (2017). (In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i).). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). As verified by the Veteran's DD Form 214, and as conceded by the AOJ in the January 2014 SOC, the Veteran served in Vietnam during the requisite time period and is thus presumed to have been exposed to an herbicide agent during service. Accordingly, service connection is warranted on a presumptive basis if it is shown that the Veteran has one of the diseases enumerated in 38 C.F.R. § 3.309(e), provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). At the outset, the Board notes that the only theory of entitlement raised by the Veteran is that his esophageal cancer is due his presumed in-service exposure to an herbicide agent, and the record does not otherwise contain any evidence to suggest that the Veteran's esophageal cancer is otherwise attributable to service. As such, the Board's analysis of the Veteran's claim will be limited to the theory advanced by the Veteran. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding "that the Board is not required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion" and "commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009) (stating that "[w]here 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"). Regarding the Veteran's assertion that his esophageal cancer is the result of in-service exposure to an herbicide agent, although pertinent regulations provide that there are certain diseases that are associated with exposure to herbicide agents and may be presumed to have been incurred in service even though there is no evidence of the disease in service, esophageal cancer is not included amongst those diseases listed in 38 C.F.R. § 3.309(e). See 38 C.F.R. §§ 3.307. 3.309. Indeed, the Veteran himself acknowledges that esophageal cancer is not included in the list of diseases associated with exposure to certain herbicide agents. Accordingly, the Veteran is not entitled to service connection for esophageal cancer on a presumptive basis due to herbicide exposure. 38 C.F.R. § 3.309(e). Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). In the instant case, the Veteran argues that because certain respiratory cancers are included on that list, it is reasonable to assume that inhalation of herbicide agents would also affect the esophageal tract. See July 2012 Statement in Support of Claim. Under 38 U.S.C.A. § 1116(b)(3), an association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against such an association. Although the Veteran has expressed his belief that his esophageal cancer is due to Agent Orange exposure, he has proffered no evidence, other than his own lay assertions, suggesting that his in-service exposure to an herbicide agency caused or contributed to his esophageal cancer, diagnosed 40 years after discharge from service. Again, the Board points out that scientific and medical studies, as discussed by the IOM/NAS, do not support an association between herbicide exposure and the development of esophageal cancer. It was further noted that "[n]o toxicologic studies provide evidence of the biologic plausibility of an association between the [exposure to an herbicide agent] and tumors of the esophagus." See Veterans and Agent Orange: Update 2014 at 324, available at https://www.nap.edu/catalog/21845/veterans-and-agent-orange-update-2014. Accordingly, although the Veteran is presumed to have been exposed to an herbicide agent in service and is shown to have developed esophageal cancer, evidence linking the current disability to military service, or specifically to herbicide exposure, is not shown. Consequently, service connection is not warranted for esophageal cancer as directly due to exposure to herbicides. See Davidson, supra (service connection requires a nexus between the claimed in-service disease or injury and the present disability). As a final point, the Board emphasizes that the Veteran has submitted no evidence, aside from his own expressed lay beliefs, that his esophageal cancer is attributable to his presumed in-service exposure to Agent Orange. However, such assertions do not provide persuasive support the claim. In this regard, the Board points out that the matter of the etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Simply stated, the Veteran is not competent to address such a matter. He has not demonstrated that he has any education, training or expertise to discuss the etiology of his claimed disability and is, thus, a layperson in this regard. See 38 C.F.R. § 3.159(a)(1). While it is in error to categorically reject layperson nexus evidence as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence. See Davidson, 581 F.3d at 1316. One factor to consider is the complexity of the question to be determined. Jandreau, 492 F.3d at 1377. Here, the matter of the etiology of esophageal cancer is not a matter within the realm of knowledge of a layperson, but, rather, a complex question that requires education, training and expertise, none of which the Veteran is shown to possess. Id. As the Veteran's lay assertions in this regard have no probative value and he cannot support his claim on the basis of lay assertions, alone. For all of the foregoing reasons, the Board finds that the claim of service connection for esophageal cancer must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible, and probative evidence supports the medical nexus element of the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102 (2017). ORDER Service connection for bilateral hearing loss is dismissed. Service connection for colon polyps is dismissed. Service connection for lymphoma is dismissed. Service connection for esophageal cancer is denied. REMAND The Board's review of the claims file reveals that further action on the remaining claim on appeal is necessary. As regards the Veteran's claim for service connection for lung lesions, the Board notes that the Veteran's has not been afforded a VA examination in connection with this claim. However, during his February 2017 hearing, the Veteran reported that he developed a cough in service and was discovered to have some type of lesion on his lungs while stationed at Fort Hood, Texas. The Veteran indicated problems with coughing since service and also stated that he was denied life insurance in or around 2001 on account of having lung lesions. The Board notes that the Veteran's VA treatment records do not reveal any specific diagnosis of lung lesions; they do, however, show treatment for respiratory/pulmonary symptomatology. Further, an August 2011 primary care note records the Veteran's assertion that "he has spots on his lungs that have been there since Vietnam experience and [that] are still there." A March 2013 chest x-ray was also interpreted to reveal "hyperexpansion of the lungs with flattening of the hemidiaphragms consistent with underlying COPD." The Board points out that the Veteran is competent to presence and continuity of such symptoms as coughing. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Veteran is competent to report a contemporaneous diagnosis. Jandreau, supra. Accordingly, given the Veteran's lay testimony concerning the onset and continuity of pulmonary/respiratory symptomatology, and the Veteran treatment records showing current treatment for respiratory symptoms and an impression of COPD, the Board has determined that the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied. See 38 U.S.C. § 5103A(d); McLendon, supra; 38 C.F.R. § 3.159(c)(4). The claim for service connection for a respiratory/pulmonary disorder, claimed as lung lesions, will therefore be remanded for the AOJ to provide the Veteran with a VA examination to fully assess the nature of any current respiratory/pulmonary disorder, to include any disability manifested by lung lesions, and to obtain an opinion regarding the likelihood that any such disability is due to service. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete with respect to the remaining claim, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the electronic claims file currently includes VA treatment records dated through November 2015. However, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the 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); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As the record shows that the Veteran is currently being treated at the Mountain Home, Tennessee, VA medical center (VAMC), the AOJ should obtain from that facility all records of pertinent evaluation and/or treatment of the Veteran since November 2015, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly as regards private (non-VA) medical treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1) ( 2012). But see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In this regard, the Board notes that during his February Board 2017 hearing, the Veteran reported having been evaluated by a Dr. G., at the time that he had applied for life insurance and indicated that Dr. G., informed him as to the presence of lung lesions. Hence, in its letter, the AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any relevant records from Dr. G. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Mountain Home VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since November 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records, to include any records of evaluation or treatment by Dr. G. pertaining to the Veteran's attempt to obtain a life insurance policy. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA pulmonary/respiratory disorders by an appropriate physician. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)) to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect full consideration of the Veteran's documented medical history and assertions. Following examination of the Veteran, to include conducting any necessary tests/studies, and review of the record, the examiner should clearly identify any current pulmonary/respiratory disease(s). This should include any such validly diagnosed disability at any point pertinent to the claim for service connection on appeal (even now asymptomatic or resolved). The examiner should state whether the Veteran actually has lung lesions and, if so, whether such lesions represent manifestations of any specific disability. Then, with respect to each such diagnosed disability, the examiner should provide a medical opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically-related to service, including exposure to pesticides/herbicide agents therein. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as the Veteran's lay assertions regarding the nature, onset, and continuity of pulmonary/respiratory symptoms. In addressing the relationship between any respiratory/pulmonary disorder and service, the examiner is advised that the absence of evidence of treatment for the claimed disability in the Veteran's service treatment records should not, alone, serve as the sole basis for a negative opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions. If the Veteran's lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority. 7. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). The AOJ is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs