Citation Nr: 21016211 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 18-28 814 DATE: March 22, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1956 to April 1958. He died in March 2013. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In January 2021, the appellant and her son, testified at a video-hearing before the undersigned. A transcript is of record. Entitlement to service connection for the cause of the Veteran’s death is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant’s claim and to afford her every possible consideration. The record reflects that pertinent private medical records are outstanding. During her January 2021 hearing, the appellant testified that the Veteran had received ongoing treatment from “Dr. P” (initials used to protect privacy). The Veteran’s claims file only contains a single treatment May 2018 treatment record from Dr. P. See May 2018 VA Form-9. Because the clinical records of the treatment, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Additionally, it appears the appellant is also now asserting a new theory of entitlement to service connection that has not been properly developed. In particular, in September 2019, the appellant raised the argument that the Veteran’s colorectal cancer was due to exposure to diesel exhaust during service. In support, the appellant submitted a statement from Dr. P indicating, in pertinent part, that “there certainly is a possibility” that the Veteran’s in-service exposure to “toxic chemicals were the etiology of his malignancies.” Dr. P did not elaborate as to what toxic chemicals were implicated and only indicated a “possibility” of an etiology. Thus, the Board does not find this opinion conclusive, but enough to warrant further development. The appellant also cited three studies which found that diesel exhaust was carcinogenic to humans. These studies are not specific to the Veteran’s specific military or medical history and, therefore, no dispositive, but again, the Board finds the evidence sufficient to warrant further development. As such, remand is needed to explore this further. See Stefl v. Nicholson, 21 Vet. App. 120, 123, 124-25 (2007) (noting that an examination must provide “sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one’” and must “support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The matter is REMANDED for the following action: 1. Ask the appellant to provide a release for relevant records of treatment from any private practitioners or, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. Specifically, records should be sought from Dr. P. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant should be notified. 2. Obtain a clarifying opinion, from an appropriate examiner, to determine the nature and etiology of the Veteran’s colorectal cancer. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran’s colorectal cancer was due to the Veteran’s exposure to diesel exhaust during service? (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) In so doing, the examiner MUST discuss Dr. P’s opinion and the medical literature cited by the appellant in September 2019. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.