Citation Nr: 20037567 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 15-46 549 DATE: June 2, 2020 REMANDED Entitlement to service connection for lung cancer, to include as associated with exposure to toxic substances, including asbestos, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from June 1974 to June 1976. In December 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to service connection for lung cancer, to include as associated with exposure to toxic substances, including asbestos. An April 2019 Board decision denied the Veteran’s claim for service connection for lung cancer, to include as associated with exposure to toxic substances, including asbestos. Upon the Veteran’s appeal to the United States Court of Appeals for Veterans Claims (Court), the Court remanded the claim to the Board in December 2019 for action consistent with the terms of the Joint Motion for Remand (JMR) filed by the parties. Specifically, the parties agree that the Board erred in relying on an October 2015 VA examination opinion, in which the examiner opined that the Veteran’s “adenocarcinoma of the lung is less likely than not due to military service,” because she was “not aware of any medical consensus []or medical literature that would provide scientific evidence to support that adenocarcinoma of the lung [is] caused by asbestos [exposure].” The parties agree that the Board’s reliance on the October 2015 examiner’s rationale was deficient insofar as it did not consider an article submitted in December 2018 by the Veteran, which asserts that there is a link between adenocarcinoma of the lung and asbestos exposure and that “Veterans with mesothelioma who served on the USS Constellation were most likely exposed [to asbestos] in the line of duty.” The JMR concluded the Board’s failure to consider this evidence therefore renders its statement of reasons or bases deficient and remand is required for the Board to address this evidence and to consider whether the October 2015 VA examiner’s opinion was adequate. In view of the addition, a new opinion will be requested. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative for information pertaining to any current treatment for lung cancer, to include as associated with exposure to toxic substances, including asbestos, at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for a review of the claims file, conducted by an examiner with an appropriate specialty for producing findings for lung cancer, to include as associated with exposure to toxic substances, including asbestos. The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all findings. If the examiner concludes that an examination of the Veteran is necessary, then the Agency of Original Jurisdiction (AOJ) should arrange for that examination. The examiner is requested to render opinions addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that lung cancer is caused by an event, injury, or illness during active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that lung cancer is caused by exposure to toxic substances, to include asbestos. The examiner is specifically requested to review and consider an Internet article, associated with the record on December 7, 2018, entitled “USS Constellation Asbestosis Exposure,” and include as part of the opinion and rationale whether is at least as likely as not or less likely than not that the Veteran’s lung cancer is due to such exposure. The examiner is further advised that, if it cannot be determined if the Veteran’s lung cancer is caused by or related to active service or specifically to exposure to toxic substances, to include asbestos, and in the manner asserted in the December 2018 article because the exact time of onset cannot be determined from the medical evidence of record or other reasons preventing a determinative conclusion, the examiner should provide a statement identifying the type of evidence the examiner would need to be able to provide an opinion on this matter. The opinions rendered by the examiner must be accompanied by a rationale, by which conclusions are supported with references to and discussion of clinical findings stated in the medical evidence of record or in a new VA examination, if deemed necessary by the examiner, and/or to accepted medical literature. The examiner is also requested to comment on all other relevant opinions in the record. The examiner is further requested to acknowledge, address, consider, and discuss in detail all lay statements of the Veteran, most particularly to include his December 2018 Board hearing testimony, and his reports to treatment providers, as they appear throughout the record, as well as all lay evidence of other persons, as it pertains to lung cancer, to include as associated with exposure to toxic substances, including asbestos. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.