Citation Nr: 1319836 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 97-10 150A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a lung disability, to include as secondary to asbestos, chemical, biological, and radiological exposure. 2. Entitlement to a total disability rating evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 1997 and March 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs). In December 1999, the Board denied the Veteran's claim for service connection for a lung disorder on the basis that the claim was not well grounded. The Veteran appealed the Board's December 1999 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2002, the Court vacated that denial and remanded the Veteran's appeal to the Board for readjudication. The Veteran's representative submitted a letter in May 2011 in which he noted that the Veteran wished to withdraw all of his appeals except the appeals relating to his lung disability and to TDIU. The Board issued a decision in November 2012 which remanded the Veteran's lung and TDIU claims, and which dismissed all the remaining appeals. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2012. A transcript of the hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND At his May 2012 hearing, the Veteran reported additional asbestos exposure while on reserve duty at Fort Douglas, Utah. In November 2012 the Board remanded the Veteran's claims and instructed the AMC to attempt to obtain records indicating whether the Veteran was exposed to asbestos during service, and to attempt to obtain copies of any service treatment records (STRs) from the Veteran's period of reserve duty. In November 2012, the AMC contacted that National Personnel Records Center (NPRC) and requested additional STRs and requested any records concerning whether the Veteran had exposure in service to asbestos. In December 2012 the NPRC responded that there were no STRs on file. With regard to the asbestos request, the response states that all available requested records were mailed. Copies of the Veteran's service personnel records were received by the AMC in December 2012. With regard to the search for service treatment records from the Veteran's period of reserve duty, the Veteran has not been provided with proper notice pursuant to 38 C.F.R. § 3.159(e) that such records could not be obtained. Under 38 C.F.R. § 3.159(e), when VA, after continued efforts to obtain Federal records, concludes that it is reasonably certain that they do not exist, or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. If such notice is oral, VA must make record of the notice. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA would take regarding the claim, and notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). No such notice was provided to the Veteran in this matter. In light of the foregoing, the Board finds it has no choice but to remand this claim and direct the AMC to provide the required notice. Additionally, the Board notes that with regard to the request for information regarding asbestos exposure, the April 2013 supplemental statement of the case (SSOC) made no reference to the service personnel records that were received in response to that request. The Veteran's electronic file contains VA treatment records dated as recently as November 21, 2011. The Veteran's updated VA treatment records should be obtained. The Veteran's claim for a TDIU is inextricably intertwined with the above claim; consideration of this matter must be deferred pending resolution of this claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain copies of the Veteran's VA treatment records dated from November 22, 2011 to present and associate such records with the Veteran's claims files. 2. Send a letter to the Veteran informing him that his reserve duty service treatment records could not be obtained. He should be told that the NPRC was contacted and that the NPRC responded that they did not have such records. The AMC should describe any further action to be taken with respect to the claim and notify the Veteran that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1). 3. When the above actions have been accomplished, readjudicate the Veteran's claims-including his claim for a TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, an SSOC should be issued which discusses all the documents received since the April 2013 SSOC, including the Veteran's service personnel records. The Veteran and his representative should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).