Citation Nr: 1628908 Decision Date: 07/20/16 Archive Date: 08/01/16 DOCKET NO. 10-25 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety. 2. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease and emphysema as due to asbestos exposure. 3. Entitlement to service connection for a left leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran had active service from August 1959 until July 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the Veteran's claim to reopen claims of entitlement to service connection for a respiratory disorder, a lower left leg disorder, and an acquired psychiatric disorder. The Veteran appealed the denials in this decision, and the matters were appealed to the Board. The Board reopened the previously-denied claims in August 2014 and remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted, the Board remanded the Veteran's claims in August 2014 for additional development, including the provision of VA examinations concerning each of the claims of entitlement to service connection. The file demonstrates that the requests were initiated on September 5, 2014. The Supplemental Statement of the Case, issued in October 2014 indicates that the examinations were scheduled in September 2014 but that the Veteran declined them. This is not recorded in the file. The Board notes that there are treatment records dated from September and October 2014, but there is no mention of canceled VA examinations. The Veteran's representative submitted a statement in June 2016 indicating that there was no evidence that the examinations were scheduled and that the Veteran declined them. The representative requested new examinations concerning the claims of entitlement to service connection for an acquired psychiatric disorder, a respiratory disorder, and a left leg disorder. The representative also noted that the exposure to asbestos had been conceded. See September 5, 2014 Exposure to Asbestos Aboard the US Navy vessels including the USS Shangri-La, USS Intrepid, and USS Constellation Memorandum. Given the evidence does not clearly show that the Veteran was scheduled for examinations and that he declined them, the Board finds that a remand is required to obtain VA examinations concerning each of the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, a respiratory disorder, and a left leg disorder. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, the Board notes that in September 2014, the Veteran was sent a notification to resubmit VA Form 21-4142, Authorization for Release of Information, for several of the providers for which he had previously provided the releases, because they had expired. The Board notes that the Veteran did not respond to this request, but on remand, the Veteran should have another opportunity to provide this information so that the RO can request the records from those providers that were generated prior to July 2009. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for claimed disabilities. The Veteran should be provided the opportunity to resubmit the VA Form 21-4142s submitted in June 2010, in order for the RO to acquire all available records from the providers he identified previously - to include those prior to July 2009 - and associate them with the claims file if not already associated with the claims file. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Associate with the claims file all relevant VA treatment records relating to mental health, the left leg, and any respiratory disorders, which are newer than October 2014 and not already associated with the claims file. 3. Following completion of the above development, schedule the Veteran for VA examinations to address the following: a) Identify all current acquired psychiatric disorders, and for each disorder identified state whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder is etiologically related to his period of service, to include as due to those in-service events described in testimony before a Decision Review Officer in May 2010. See May 2010 transcript. b) Identify all current left lower extremity disorders and for each disorder identified, including a left knee meniscal tear, state whether it is at least as likely as not (50 percent or greater probability) whether any left leg disorder is etiologically related to his period of service, to include an in-service fall from a ladder in April 1961 as described in testimony before a Decision Review Officer in May 2010. See May 2010 transcript. c) Identify all current respiratory disorders and for each disorder identified, including COPD and emphysema, state whether it is at least as likely as not (50 percent or greater probability) that any respiratory disorder is etiologically related to his period of service. The examiner should note that it has been determined by administrative finding that the Veteran was likely exposed to asbestos, and the examiner is asked to specifically comment on the link between such exposure and any current respiratory disorder. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 5. After completing all indicated development, readjudicate the claims of service connection for an acquired psychiatric disorder, a left leg disorder, and a respiratory disorder in light of all the evidence of record. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).