Citation Nr: 21032449 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-08 070 DATE: May 27, 2021 REMANDED Entitlement to service connection for lung adenocarcinoma status post lobectomy (lung cancer) is remanded. Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for diabetes mellitus, type 2, (diabetes) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1963 to November 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision (lung cancer) and May 2018 rating decision (CAD and diabetes) issued by a VA Regional Office (RO). These claims were previously before the Board in December 2020 in which a remand was ordered for further development. Specifically, the Board requested that the RO fully develop the Veteran's assertion that he was exposed to radiation during service and to obtain VA medical opinions as to whether the Veteran's lung cancer is related to exposure to asbestos, lead paint, or radiation exposure during service. In addition, the RO was asked to obtain an addendum medical opinion as to whether the Veteran's CAD and diabetes are proximately due to or aggravated by his service-connected post-traumatic stress disorder (PTSD). The Board is sincerely apologetic for the additional delay, however, as will be discussed below, the resulting development was not responsive to the Board's directives and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to service connection for lung cancer, coronary artery disease (CAD) and diabetes mellitus Type 2 (diabetes) are remanded. As noted above, the Board in its' December 2020 remand, requested that the RO fully develop the Veteran's assertion that he was exposed to radiation during service from 1964 to 1965 while aboard the USS Shangri La. In addition, the Board requested that the RO afford the Veteran a VA medical opinion concerning his secondary theory of entitlement for his CAD and diabetes. The Board finds that the requested development has not occurred and therefore further remand is required. Here, the RO requested verification of the Veteran's radiation exposure in December 2020. In March 2021, the Defense Threat Reduction Agency (the Agency) responded to the RO's radiation verification request asking for additional information. Specifically, the Agency requested a copy of the Board's December 2020 remand, the Veteran's date of birth and place of birth, and the name and telephone number of the Veteran's representative. In April 2021, the Agency again requested the same information from the RO. Prior to receiving any further response from the Agency, in January 2021 the RO issued a supplemental statement of the case (SSOC) continuing the denial of the Veteran's claims for service connection on the basis that he did not respond to the subsequent development letter dated December 24, 2020. In March 2021, the Veteran's current appeal was returned to the Board for adjudication. At the time of this decision, the claims file does not contain any further response from the Defense Threat Reduction Agency concerning the Veteran's claim of radiation exposure. The claims file also does not contain any VA medical opinions as to whether the Veteran's currently diagnosed conditions of CAD and diabetes are secondarily related to his service-connected PTSD nor whether his lung cancer is related to lead paint or asbestos exposure. The Board's December 2020 directives did not provide that the RO could stop all claims development and issue an SSOC if the Veteran did not provide any updated information. A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board's remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives. See Stegall, 11 Vet. App. at 271. Therefore, as substantial compliance with the Board's December 2020 Remand directives has not occurred as set forth above, the Veteran's claim must once again be remanded for further development. See id. In addition, the Board finds that a duty to assist error has occurred therefore, a remand is required in order to address the error. The Veteran identified the presence of VA treatment records that do not appear to be associated with the claims file. Specifically, in a January 2021 General Release, the Veteran indicated that he has received ongoing treatment from Hunter Holmes McGuire VA Medical Center in Richmond Virginia from July 1999 to the present. The most recent VA treatment records in the claims file are dated from January 2020. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, and VA medical records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Here, there is no correspondence indicating that the identified VA treatment records are not available nor is there any indication that the RO made attempts to obtain the records prior to issuing the January 2021 SSOC. As such, a duty to assist error has occurred and a remand is required. As an aside, during the September 2020 Board hearing before the undersigned, the Veteran and his representative offered additional theories for entitlement to service connection on a secondary basis to the Veteran's already service-connected PTSD. The Veteran referenced various medical reports indicating a possible connection between PTSD and the Veteran's claimed medical conditions of CAD and diabetes. The Veteran and his representative further indicated that they would submit additional evidence including the cited medical literature within thirty days immediately preceding the hearing. As of the date of this decision, it is unclear if all the evidence referenced has been submitted. Since it is necessary to remand this claim for pre-decisional errors, however, the Board wishes to allow the Veteran, in the interests of justice, an additional opportunity to submit the above referenced evidence. Therefore, the RO should allow the Veteran time to submit the referenced evidence and then consider and develop the alternative theories to service connection as appropriate. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records from Hunter Holmes McGuire VA Medical Center in Richmond, VA from July 1999 to the present. 2. Respond to the Defense Threat Reduction Agency's (DTRA) March 2021 and April 2021 letters requesting additional information as it pertained to processing the radiation claims. In particular, provide DTRA with a copy of the Board's December 2020 remand, as well as a copy of this remand, the Veteran's date and place of birth, and the name and telephone number of the VA representative handling the claim. Continue to complete any other development needed to verify the Veteran's assertion that he was exposed to radiation from 1964 to 1965 aboard the USS Shangri La while "overhauling" ship at drydock in Philadelphia, Pennsylvania. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion. If more details are needed, contact the Veteran to request the information 3. Notify the Veteran that VA will seek to obtain additional medical opinions regarding his claims of entitlement to service connection for lung cancer, coronary artery disease (CAD)and diabetes mellitus Type II (diabetes) and request that the Veteran provide any new, relevant evidence, including the evidence referred to at the September 2020 Board hearing, to the RO within thirty (30) days of the notification so that any such evidence can be considered by the VA examiners. (a.) Specifically, the RO must request that the Veteran provide an updated authorization and release to obtain private treatment records from Centra Southside Community Hospital in Farmville, VA from January 1988 to March 1991, VCU/MCV Hospital in Richmond, VA from February 1991 to February 1992, and Southside Cardiology Associates in Farmville, VA from April 1996 to May 1991. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lung cancer is at least as likely as not (a 50 percent or greater probability) related to claimed exposure to asbestos, lead paint, or radiation exposure during service. The examiner should also opine as to whether the Veteran's CAD and diabetes are at least as likely as not (a 50 percent or greater probability) proximately due to or aggravated beyond their natural progression by the Veteran's service-connected post-traumatic stress disorder (PTSD). The examiner is cautioned that the term "aggravated," as used in 38C.F.R. §3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31Vet. App.233, 239 (2019). Provide to the examiner any new lay statements, medical records, and/or medical opinions submitted by the Veteran within 30 days of the above-notice letter and ensure the examiner has access to the entire claims file. The examiner should review the entire claims file, including any relevant lay statements, medical evidence, or opinions submitted by the Veteran, and should specifically comment on any medical opinions submitted by the Veteran subsequent to the September 2020 Board hearing. 5. 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 S. F. Minnitte, Attorney Advisor 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.