Citation Nr: A24021908 Decision Date: 04/29/24 Archive Date: 04/29/24 DOCKET NO. 191227-52550 DATE: April 29, 2024 REMANDED Entitlement to service connection for adenocarcinoma of lung is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1983 to September 1987 and from June 1988 to August 2004. The Appeals Modernization Act (AMA) automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The rating decision on appeal was issued in May 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the AMA, applies. In the December 27, 2019 VA Form 10182, Decision Review Request: Board Appeal Notice of Disagreement (NOD), the Veteran elected the Hearing docket. A Board hearing was held on January 26, 2024. A transcript of the hearing is of record. Therefore, the Board may only consider the evidence of record at the time of the May 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. However, because the Board is remanding the claim of entitlement to service connection for adenocarcinoma of lung, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Under the AMA, any favorable finding made by AOJ is binding on the Board unless it can be rebutted. 38 C.F.R. § 3.104(c). Entitlement to service connection for adenocarcinoma of lung is remanded. The Veteran contends his adenocarcinoma of lung is due to his military service. The Veteran's service treatment records are silent to complaints, treatments, or diagnoses related to the Veteran's adenocarcinoma. In a favorable finding in the May 2019 rating decision, the AOJ identified the Veteran had been diagnosed with adenocarcinoma of lung. In an April 30, 2019 VA examination, the Examiner opined that the Veteran was less likely than not to have a diagnosis asbestosis caused by or related to asbestos exposure during service. However, the examiner did not provide an opinion whether the Veteran's adenocarcinoma was as likely as not caused by the Veteran's military service. As the AOJ did not obtain an addendum to correct this deficiency at the time of the initial decision on appeal, such was a pre-decisional duty to assist error; a remand is necessary to correct it. Additionally, the Board notes the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) added new examination requirements where toxic exposure risk activities (TERA) are implicated. See 38 U.S.C. § 1119. The PACT Act provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in TERA, then the VA shall obtain a medical opinion as to whether it is at least likely as not that there is a nexus between the disability and the TERA. 38 U.S.C. § 1168. The evidence of record document the Veteran received the Southwest Asia Service Medal for his engagement in Operation Provide Comfort. See April 1991 Military Personnel Record. Thus, there is evidence that the Veteran may be a Persian Gulf War veteran with possible TERA. See 38 U.S.C. § 1117(f). Given that the Veteran's adenocarcinoma may be directly related to the Veteran's in-service toxic exposure, Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), a medical opinion is needed to determine whether the Veteran's adenocarcinoma was related to his possible in-service toxic exposure. As the AOJ did not obtain a VA examination to correct this deficiency at the time of the initial decision on appeal, such was a pre-decisional duty to assist error; a remand is necessary to correct it. Accordingly, the Board finds that a remand is necessary for a medical opinion to determine the nature and etiology of the Veteran's adenocarcinoma under the PACT Act. 38 U.S.C. § 1168; 38 C.F.R. § 3.159(c)(4). Further, the AOJ did not attempt to obtain the private medical treatment records of the Veteran's adenocarcinoma from the Baptist Medical Center or from the Veteran's primary care physician despite being documented in a January 23, 2019 VA treatment record. The foregoing constitutes a pre-decisional duty to assist error, under the AMA, and the claim must be remanded to correct it. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete VA Form 21-4142 for private medical treatment records of his adenocarcinoma of lung from the Baptist Medical Center and from his primary care physician. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain an opinion from an appropriate clinician. A copy of this remand request and the Veteran's casefile should be provided. If the clinician determines it is necessary, schedule the Veteran for an examination for the Veteran's adenocarcinoma of lung to determine the nature and etiology of the Veteran's adenocarcinoma. The clinician must opine whether it is at least as likely as not that the Veteran' adenocarcinoma is related to his toxic exposure risk activities during his military service. In rendering this opinion, the clinician must consider the following: 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The clinician is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. 3. After ensuring full compliance with this remand, readjudicate the claim on appeal. Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hahn 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.