Citation Nr: 21006234 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 19-05 706 DATE: February 3, 2021 REMANDED Entitlement to service connection for diffuse large B-cell lymphoma on a substitution basis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to March 1978 and from June 1979 to November 2000. The Veteran unfortunately died in May 2018 while the instant claim was pending. The appellant is the Veteran’s surviving spouse, who has been properly substituted as the claimant in this case. See VA Memorandum dated July 19, 2018. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In August 2019, the Board denied service connection for diffuse large B-cell lymphoma. The appellant appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Remand (JMR), remanding the issue to the Board. See Court Order dated July 22, 2020. The JMR represents agreement between the parties (the appellant and VA Office of General Counsel) that the Board erred by not providing an adequate statement of reasons or bases to address whether the Veteran’s diffuse large B-cell lymphoma was related to service. See Joint Motion for Remand dated July 16, 2020. Specifically, the JMR reflects that while the Board discussed the Veteran’s alleged exposure to asbestos, it offered no discussion pertaining to other alleged exposures (chemicals and pesticides), and that while the appellant alleged that the Veteran’s diagnosed condition was medically related to chemical and pesticide exposures, the Board made no finding regarding whether a VA medical opinion was necessary. See Joint Motion for Remand dated July 16, 2020 at pg. 2. Pursuant to the JMR, the Board sent the appellant and his representative notice that he could submit additional evidence and argument in support of his appeal before the Board would proceed with readjudication. See Board letter dated August 28, 2020. On further review, the Board finds that remand is warranted. Discussion Service department records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Here, the appellant asserted that the Veteran was exposed to asbestos, chemicals, and other hazards during service. See Statement in Support of Claim received July 18, 2018. In correspondence dated August 2018, the RO requested additional information from the appellant regarding what specific chemicals and other hazards the Veteran was exposed to and where and when the exposure took place. See VA correspondence dated August 14, 2018. The appellant replied that the Veteran was exposed to asbestos while deployed to Bosnia and to farm pesticides during field exercises. See Statement in Support of Claim received August 20, 2018. The Veteran’s service personnel records reflect “numerous field deployments” as well as service in Bosnia-Herzegovina in 1996. See Performance and Potential Evaluation Reports dated December 16, 1996 and December 3, 1997. Nevertheless, the RO took no further action to either request clarification or attempt to obtain additional evidence from the appellant or the service department regarding the specific locations and circumstances of the Veteran’s Bosnia deployment and field exercises that may have resulted in exposure to asbestos, chemicals, and pesticides during service. Yet, the RO denied the claim in its November 2018 rating decision, concluding that there is “no evidence this condition was due to environmental, chemical or asbestos exposure.” See Rating Decision dated November 21, 2018 at pg. 3. Accordingly, on remand appropriate efforts must be undertaken, with the assistance of the appellant as needed, to obtain service department records, if any, relevant to the Veteran’s asserted exposure to asbestos and other hazards during service. Furthermore, VA is obligated to provide an examination and/or obtain a medical opinion in an initial claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the appellant asserts that the Veteran told her he was exposed to asbestos and farm pesticides during service. The appellant is competent to report what the Veteran told her, and on the record as presently developed the Board finds no reason not to find the appellant’s statements credible. While the appellant’s statements are not sufficient to establish a nexus between the Veteran’s lymphoma and service, the evidence is sufficiently suggestive of a nexus to trigger the need for a VA opinion in support of this claim. See McLendon, 20 Vet. App. at 83 (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for requirement that evidence indicate that claimed disability may be associated with in-service injuries for purposes of obtaining an examination); 38 C.F.R. § 3.159(c)(4)(i)(B). Therefore, on remand a medical opinion addressing the etiology of the Veteran’s lymphoma must be obtained. The matters are REMANDED for the following action: 1. Contact the appellant and her representative, and clarification and/or augmentation of the information she previously provided regarding the claimed exposure of the Veteran to asbestos, chemicals, and pesticides. Allow the appellant a reasonable time to respond. 2. Then, regardless whether a reply is received from the appellant or her representative, contact the appropriate service department to request any additional service personnel records or other evidence indicating the presence of asbestos, chemical, and pesticides at facilities and/or field locations where the Veteran was deployed and participated in field exercises. Associate with the electronic claims file all evidence received in reply to this request and provide copies of the evidence to the appellant and her representative. If the RO determines that the requested evidence/records are unavailable it must associate with the claims file a memorandum of formal finding to that effect, and a copy of the memorandum shall be provided to the appellant and her representative. 3. Thereafter, obtain a VA medical opinion as to the etiology of the Veteran’s diffuse large B-cell lymphoma and any associated manifestations. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: After a complete review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s diffuse large B-cell lymphoma had its onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, to include exposure to asbestos, pesticides, and other chemicals, as claimed by the appellant. The examiner should provide a complete rationale for each opinion. Provide the appellant and her representative with a copy of the VA opinion. *Please note the representative’s correspondence received July 13, 2020, which includes a Privacy Act request for newly developed evidence, and a request for a 60-day abeyance in readjudication of the claim by the agency of original jurisdiction. 4. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell, Associate Attorney 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.