Citation Nr: 21041918 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-31 760 DATE: July 10, 2021 REMANDED Entitlement to service connection for lung cancer, to include as secondary to asbestos exposure is remanded. Entitlement to service connection for brain cancer, to include as secondary to lung cancer is remanded. REASONS FOR REMAND The Veteran had active duty from May 1965 to April 1968. He testified in a hearing before the undersigned in April 2019. A transcript is of record. The Veteran appealed the February 2020 Board's decision to the United States Court of Appeals for Veterans Claims (CAVC or Court) as to the instant issues. In a March 2021 Order, CAVC issued a Joint Motion for Remand (JMR). The parties to the JMR determined that the Board erred when it failed to consider all the factors pertaining to the Veteran's reporting of his asbestos exposure as related to his lung cancer. Specifically, the Court held that the Board's decision did not fully address the examiners failure to comply with the Board's July 2019 remand instructing the VA examiner to discuss the medical opinions submitted by the Veteran which suggest that his lung cancer and secondary brain cancer, are related to his exposure to asbestos. 1. Entitlement to service connection for lung cancer, to include as secondary to asbestos exposure 2. Entitlement to service connection for brain cancer, to include as secondary to lung cancer Given the findings of the Joint Motion and in order to afford the Veteran every consideration the Board will arrange for another records review and VA examination (if necessary). The examiner should first determine if the Veteran has a clinically established diagnosis or findings indicative of asbestos exposure. The examiner should also address the medical opinions submitted by the Veteran which suggest that his lung cancer and secondary brain cancer, are related to his exposure to asbestos or tobacco use in-service. Further, to assure a complete file for review any pertinent outstanding medical records should be sought. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and provide appropriate releases for any care providers who may possess new or additional evidence pertinent to the remaining issues on appeal. This should include a release of information form for any private treatment pertinent to his remanded disabilities. If he provides the necessary release(s), assist his in obtaining the records identified. 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 Veteran and his representative should be notified. Specific care should be taken to obtain any records which confirm a diagnosis or treatment for asbestos exposure. 2. After the foregoing development has been completed to the extent possible, return the records to the prior examiner, or a similarly qualified examiner and schedule the Veteran for any pertinent examinations (if necessary) for his remanded disabilities. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the records and the Veteran (if necessary) the examiner must provide a full description of all symptoms and manifestations associated with the Veteran's remanded disabilities above. The examiner's opinions should address the Veteran's particular remanded and answer the following: (a) Taking into consideration the Veteran's STR's, lay statements, and post service VA and private treatment records, does the Veteran have a current diagnosis of asbestos exposure or are there any clinical indications of such claimed exposure? If no findings of asbestos exposure are diagnosed or indicated, that should be specifically set out with the factors considered in making that determination. Please reconcile any such findings with the other reports on file, to the extent possible. If yes, is it at least as likely as not (50 percent or greater probability) that the onset of the Veteran's lung cancer and secondary brain cancer are related to his exposure to asbestos in-service? The examiner should discuss the Veteran's reporting of in-service asbestos exposure and symptomology. The examiner should also discuss in detail the medical opinions submitted by the Veteran which suggest that his lung cancer and secondary brain cancer, are related to his exposure to asbestos in-service. If the onset of the Veteran's lung cancer and secondary brain cancer are not found to be related to his exposure to asbestos in-service, that should be specifically set out with the factors considered in making that determination. Please provide a complete rationale for all opinions entered and review the entire record including lay statements. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. 3. The AOJ must ensure that the examiner's report complies with this remand and answers the questions presented in the request. The AOJ must also ensure that the examiner documents consideration of the electronic claims file. If the report is insufficient, the AOJ should take corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harris, Michael E. 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.