Citation Nr: A21020027 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200629-94904 DATE: December 15, 2021 REMANDED Entitlement to service connection for non-Hodgkin's lymphoma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1966 to April 1968. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 5, 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In December 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claim for service connection for non-Hodgkins lymphoma most recently addressed in a December 2019 rating decision. In May 2020, the AOJ issued the supplemental claim decision, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In May 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2020 decision. In June 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2020 decision. In the June 29, 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. This appeal is advanced on the docket on account of the Veteran's advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for non-Hodgkin's lymphoma is remanded. The Veteran argues, in sum and substance, that he was exposed to mustard gas during active duty service, and that this exposure is at least 50 percent likely the etiology of his current non-Hodgkin's lymphoma. Under the AMA, remands are limited to correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). On November 26, 2021, a notation was placed in the Veteran's claims file stating that despite a record of completion on August 18, 2021, a Personnel Information Exchange System (PIES) O-50 request received on December 28, 2020 was still outstanding as complete service records were not uploaded into Veterans Benefits Management System (VBMS). See Email Correspondence ( Nov. 26, 2021 ). This email indicated that although the record shows that the request was marked as complete in August 2021 and that the records were sent for scanning, there is no indication of anything pending scanning in VBMS and that no records were uploaded since August 2021. The objective of the PIES O-50 request received on December 28, 2020 was to furnish complete service treatment medical and dental records. See VA Form 21-3101 ( Dec. 28, 2020 ). The Board concludes that if the request to obtain service treatment records is still outstanding, then this constitutes an error of the AOJ's regulatory duty, and correcting this error has a reasonable possibility of aiding in substantiating the Veteran's claimin this case, a claim that an in-service exposure to mustard gas and/or chemical agents is the etiology of non-Hodgkin's lymphoma. See 38 C.F.R. § 20.802(a). The Board concludes that if for no other reason, a remand could be required on this basis alone. In addition to the above, the Board notes the June 5, 2020 rating decision on appeal, which lists the evidence that the AOJ considered in chronological order. One piece of evidence not listed as having been reviewed by the AOJ is a VA memorandum dated May 1, 2020, which states that the Veteran's duties from June 1966 to April 1968 (or possibly even as early as April 1966) involved chemical biological agents. See VA Memo ( Feb. 18, 2020 ) (rec'd May 1, 2020). The Board notes the Veteran's argument that he was exposed to mustard gas by virtue of his military occupational specialty (MOS) of chemical staff specialist (54E20). See Higher Level Review Informal Conference (June 4, 2020); DD Form 214 (rec'd June 25, 2008), at Question No. 23a. The June 2020 rating decision included a favorable finding that the Veteran had been diagnosed with non-Hodgkin's lymphoma. The Veteran has not yet been afforded a VA examination to determine the nature and etiology of his claimed non-Hodgkin's lymphoma. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) The failure to obtain an etiology opinion is a pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. The AOJ is directed to fulfill the outstanding PIES O-50 request originally filed on December 28, 2020, but which has remained unfulfilled as of November 26, 2021, despite a contrary record of completion dated August 18, 2021. This request was for the Veteran's complete service records. 2. Once the AOJ ensures that all complete service records are associated with the Veteran's claims file, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed non-Hodgkin's lymphoma. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (50 percent probability or greater) that the claimed non-Hodgkin's lymphoma had its onset in service or is otherwise etiologically related to service, to include any chemical exposures due to the removal of chemical munitions? The examiner should specially address the impact, if any, of the following: (A) A February 18, 2020 finding that the Veteran's duties involved chemical and biological agents from a starting date no earlier than April 1966 but no later than June 1966, through April 1968; i.e.: the Veteran's duty stations at Fort McClellan, Alabama; Fort Hood, Texas; and Okinawa, Japan, and potentially also Fort Polk, Louisiana, (B) The Veteran's military occupational specialty (MOS) of chemical staff specialist (54E20), (C) The Veteran's lay statements as pertaining to mustard gas exposure pursuant to his MOS. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.