Citation Nr: A20017543 Decision Date: 11/27/20 Archive Date: 11/27/20 DOCKET NO. 190821-27124 DATE: November 27, 2020 REMANDED Entitlement to service connection for brain cancer is remanded. Entitlement to service connection for lung cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1962 to October 1966. A rating decision was issued under the legacy system in March 2018 and the Veteran submitted a timely notice of disagreement. In July 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an August 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the claims addressed in the July 2019 SOC. Therefore, the July 2019 SOC is the decision on appeal. The Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In an August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In November 2019, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that proceeding is of record. The issue of entitlement to service connection for lung cancer and brain cancer is remanded to correct a duty to assist error that occurred prior to the July 2019 SOC on appeal. While the AOJ acknowledged herbicide exposure was conceded, the AOJ did not obtain VA examination reports prior to the July 2019 SOC on appeal based on a lack of medical evidence reflecting a diagnosis of either brain cancer or lung cancer. However, a review of the medical evidence prior to the July 2019 SOC reflects that the Veteran received treatment for a lung nodule in 2016. Further, in an August 2015 review of a CT scan of the head, the Veteran was found to have mild cerebral loss of brain volume with moderate chronic microvascular ischemic change within the deep white matter. Given these documented abnormalities of the Veteran’s lungs and brain occurring prior to the July 2019 SOC, the Board concludes the Veteran should have been afforded medical opinions to determine whether the Veteran currently or previously has a diagnosis of lung and/or brain cancer, and if so to determine any potential link with his active duty service. The matters are REMANDED for the following action: Obtain a medical opinion to determine if the Veteran is currently or previously has been diagnosed with either lung cancer or brain cancer. The examiner must review the claims file. The need for an in-person examination is left to the discretion of the examiner. The examiner is asked to provide a response to the following: Does the Veteran currently have a diagnosis of either lung cancer or brain cancer? Has the Veteran ever been diagnosed with lung cancer or brain cancer? If the Veteran is found to be diagnosed with lung cancer and/or brain cancer, is it at least as likely as not related to his active duty service, including herbicide exposure during service in the Republic of Vietnam? Provide a rationale to support the opinions. The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed disabilities are not on the list of diseases that are presumptively associated with exposure to herbicide agents. In providing the requested opinion, consider the Veteran’s description of post-service symptoms, including his November 2019 testimony before the Board. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.