Citation Nr: 1805610 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-06 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for prostate cancer, to include as being secondary to chemical dioxin and/or asbestos exposure, for accrued purposes. 3. Entitlement to service connection for nasopharyngeal cancer, to include as being secondary to chemical dioxin and/or asbestos exposure, for accrued purposes. 4. Entitlement to service connection for lung cancer, to include as being secondary to chemical dioxin and/or asbestos exposure, for accrued purposes. 5. Entitlement to service connection for asbestosis and the residuals thereof, for accrued purposes. 6. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), for accrued purposes. 7. Entitlement to service connection for a cardiac disorder, to include hypertension and other associated heart conditions, to include as being secondary to chemical dioxin exposure, for accrued purposes. 8. Entitlement to service connection for coronary artery disease, to include as being secondary to chemical dioxin exposure, for accrued purposes. 9. Entitlement to service connection for the residuals of a back injury, for accrued purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran was on active duty from September 1962 to September 1966. He passed away in October 2006, and the appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September and October 2007 of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. The appellant provided testimony before the undersigned via a videoconference hearing in May 2014. A transcript of that hearing was prepared and has been included in the claims file for review. In September 2016, the RO granted service connection for the appellant's bilateral hearing loss accrued benefits claim. Therefore, this issue is no longer on appeal. AB. Brown, 6 Vet. App. 35, 38 (1993). However, the Board notes that in October 2016, the appellant filed a timely notice of disagreement. The RO responded by acknowledging receipt and indicating that a Statement of the Case would be forthcoming. As the notice of disagreement was acknowledged, a remand to have the Agency of Original Jurisdiction (AOJ) issue a Statement of the Case is deemed unnecessary. Cf. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The appellant asserts that the Veteran's asbestos exposure (which was conceded by VA) caused the Veteran's prostate cancer, nasopharyngeal cancer, and lung cancer, which in turn caused and/or substantially contributed to his death. In a January 2015 VA opinion, the VA examiner opined that the Veteran's lung, prostate, and nasopharyngeal cancers were not related to service. However, while the examiner acknowledged the Veteran's exposure to asbestos in rendering an opinion as to the etiology of his asbestosis, the examiner did not address or offer any opinions as to whether the Veteran's cancers were caused by his exposure to either asbestos or the chemical dioxin. As such, this opinion is inadequate and a new addendum opinion is necessary to determine if the Veteran's cancers are related to his exposure to asbestos and/or the chemical dioxin. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, in September 2014, the Board remanded the issues on appeal, in part, to obtain all outstanding VA treatment records. In this case, it is unclear if the AOJ attempted to obtain additional outstanding VA treatment records. Specifically, the July 2016 Supplemental Statement of the Case indicates that treatment records from the Birmingham VA Medical Center dated October 4, 2004, to August 21, 2006, were considered. However, there is no indication if these records were "new" records received since the prior Supplemental Statement of the Case, or if duplicative of the records already in the claims file. Further, there is no indication that the AOJ attempted to obtain any outstanding VA treatment records that were not already associated with the claims file. Therefore, in order to prevent prejudice to the Veteran, a remand is required in order to associate these records with the Veteran's claim file and/or for the AOJ to make an effort to obtain any relevant outstanding records. Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders, and the Board itself commits error in failing to ensure this compliance); see also Dyment v. West, 13 Vet. App 141 (1999) (Board's failure to ensure requested development constitutes a violation of his due process rights). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall obtain and/or associate all of the Veteran's service treatment records from January 1966 to October 2006, including the October 2004 to August 2006 VA treatment records from the Birmingham VA Medical Center, with the claims file. All efforts made to obtain this information should be documented in the claims file. If these records are unable to be obtained, a formal finding of unavailability should be prepared and associated with the claims file. 2. After the above has been completed, the AOJ shall obtain an addendum opinion from the January 2015 VA examiner (or a comparable examiner if unavailable) to determine whether it is at least as likely as not that his lung, prostate, and nasopharyngeal cancers were incurred in service, to include as related to: (a) Asbestos exposure (which has been conceded by VA) during active service; and/or, (b) Chemical dioxin and/or other toxic herbicide exposure during active service in Vietnam. The examiner must consider all relevant lay and medical evidence of record. The examiner should provide the rationale for all opinions rendered. A copy of the claims file should be provided to the examiner for review. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ will then readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant and her representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The appellant need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).