Citation Nr: 18159502 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-03 708 DATE: December 19, 2018 REMANDED Service connection for lung cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from November 1959 to July 1963. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2017 decision, the Board denied the Veteran’s claim for service connection for lung cancer. The Veteran then appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). An August 2018 Court Order remanded the claim to the Board for readjudication in accordance with a Joint Motion for Remand (JMR). 1. Service connection for lung cancer is remanded. The JMR and Court order determined that the Board had not ensured that all relevant evidence had been obtained and had relied on an inadequate medical opinion. Remand is necessary to attempt to obtain specified VA medical records as well as other records identified by the Veteran. Following that development, a VA medical opinion must be obtained. The matter is REMANDED for the following action: 1. Obtain the October 2004 VA surgical pathology report associated with treatment of the Veteran’s lung cancer at the Portland VAMC. All efforts to obtain such record must be fully documented and VA facilities must provide a negative response if no such record is found. 2. Obtain any and all of the Veteran’s VA treatment records from 2002 to the present from Portland VAMC. Specifically, attempt to obtain the following specified records: April 2009 pulmonary procedure note; November 2011 emergency department evaluation; January 2010 emergency department evaluation; April 2009 emergency department evaluation; October 10, 2004 ICU flowsheet; October 9, 2004 ICU flowsheet; September 2004 anesthesiology note; June 2004 emergency department note (x-rays); June 2004 emergency department note; June 2004 emergency department note; May 2004 emergency department note (x-rays); February 2002 consent form. 3. Make appropriate efforts to obtain the cruise book for the U.S.S. Kearsarge for the period from 1961 to 1963. 4. If, after making as many requests as are necessary to obtain any of the records requested in Remand Directives 1 through 3, it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the AOJ should issue a Formal Finding on the Unavailability of Records Memorandum consistent with 38 C.F.R. § 3.159 (e)(1) and send the Veteran appropriate notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA is unable to obtain, and that he is ultimately responsible for providing the evidence. 5. After completing the above, schedule the Veteran for an examination by a VA physician who will provide an opinion regarding the etiology of the Veteran’s lung cancer. The claims folder and copies of all pertinent records should be made available to the clinician in conjunction with this request. The examiner is requested to indicate whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s lung cancer, diagnosed in 2004, is causally related to any event or circumstance of his active service, to include exposure to asbestos during Naval service. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. (Continued on the next page)   A clear rationale for all opinions expressed should be provided and a discussion of the facts and medical principles involved should be included. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel