Citation Nr: 20026065 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-35 440 DATE: April 15, 2020 REMANDED The claim for service connection for right lung cancer to include right lung removal (asbestos) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1956 to January 1960. In October 2016, the Veteran was afforded a videoconference hearing before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102 (b). In December 2018, the Board denied the claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In December 2019, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s December 2018 decision. That same month, the Court issued an Order vacating the December 2018 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). The Veteran asserts that he has the claimed condition due to exposure to asbestos during service aboard the U.S.S. Intrepid (CVA-11). The Veteran’s personnel file, to include his discharge (DD Form 214), shows that his military specialty was RD0300 (the Veteran has reported that he had some duties as a radarman). His enlistment performance record indicates that his rates were SA (seaman apprentice) and SN (seaman) and that he served aboard the U.S.S. Intrepid between November 1956 and January 1960. The Board notes that VA presumes “minimal” asbestos exposure for these rates. The medical evidence currently of record shows that the Veteran was diagnosed with carcinoma of the lung in 2008, at which time he underwent surgery. See e.g., reports from the St. Francis Hospital, dated in July 2008; report from M.O., M.D., dated in September 2015; VA disability benefits questionnaire (DBQ), dated in April 2017. Over the course of the appeal, the Veteran has been sent several duty-to-assist letters, and he has provided multiple authorizations for release of his treatment records. He indicated that he was first treated for the claimed condition no earlier than 2008; he has never identified receiving any relevant treatment in 1987. However, the JMR notes that an October 2013 VA DBQ notes a history of a right middle lobectomy in 1987. The JMR shows that it was agreed that VA failed in its duty to assist because it did not attempt to obtain the Veteran’s records of treatment in 1987. The JMR further states that it was agreed that a VA etiological opinion, dated in April 2017, was deficient because the examiner stated that there was no evidence that the Veteran had any clinical conditions associated with asbestos, however, this appeared to be inconsistent with an October 2013 VA chest X-ray report, which noted “evidence of underlying emphysema and fibrosis and pleural scarring is suggested.” The matters are REMANDED for the following action: 1. After obtaining any necessary authorization, attempt to obtain the Veteran’s records of medical treatment in 1987. All contact with the Veteran and all attempts to obtain records on his behalf must be documented in the claims file. 2. Thereafter, obtain a medical opinion of record. If the requested opinion cannot be provided without a physical examination, one should be scheduled. The examiner is informed of the following: The Veteran’s active duty was between March 1956 and January 1960. He had duties during service as a seaman apprentice and seaman. Minimal asbestos exposure is presumed. After review of the record, the examiner should address the following question: Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran’s right lung cancer, to include right lung removal, was manifested during, or otherwise caused by, active duty service or any incident therein, to include as due to exposure to asbestos? Why or why not? In the opinion, the examiner should discuss the results of the Veteran’s October 2013 VA chest X-ray, which notes that “evidence of underlying emphysema and fibrosis and pleural scarring is suggested.” (Continued on the next page)   The examiner should review the Joint Motion for Remand (“CAVC Decision” 12/30/19) for an explanation of why the 2017 VA medical opinion was found to be inadequate. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.