Citation Nr: 1756743 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-17 231 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for pulmonary/respiratory disability, to include as due to exposure to asbestos and/or environmental hazards, including jet fuel. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1969. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2010 rating decision in which the RO, inter alia, denied entitlement to service connection for a lung disease, claimed as asbestosis. The Veteran filed a notice of disagreement (NOD) that same month. A statement of the case (SOC) was issued in June 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. In March 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2016, the Board expanded the claim on appeal to include other respiratory disorders (consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009)), and remanded the expanded claim to the agency of original jurisdiction (AOJ) for additional development. After attempting to accomplish the requested action, the AOJ denied the expanded claim (as reflected in a December 2016 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In June 2017 and August 2017, the Board again remanded the claim to the AOJ for further action and development. After accomplishing some action on each occasion, the AOJ returned matter to the Board for further appellate consideration. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing system. For reasons expressed below, the claim on appeal is, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that still further action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In remanded this claim in June 2017 and August 2017, the Board specifically directed the AOJ to resend a copy of the December 2016 SSOC to the Veteran's correct, current address, as well as his current representative. Although the Veteran's representative indicated receipt of the SSOC, following both remands, the AOJ resent the SSOC to the same, prior address in California, rather than to the Veteran's current address in Arizona, as listed on correspondence dated on August 8, 2017, from the Board; and thus, in both instances, the copy of the SSOC was returned as undeliverable. As the AOJ still has not sent a copy of the December 2016 SSOC to the Veteran's correct address in Arizona, to afford him the opportunity to respond thereto, as directed, yet another remand of this matter is necessary to ensure compliance with the Board's June 2017 and August 2017 remand instructions. See Stegall, supra. Hence, on remand, the AOJ must re-send the December 2016 SSOC to the Veteran's correct, current address in Arizona, and afford him and his representative an appropriate opportunity to respond. Also, while this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claim file all outstanding, pertinent records. As for VA records, the claims file reflects that the AOJ requested treatment records from the Loma Linda VA Medical Center (VAMC), and that records from this facility dated through August 2017 are associated with the file; however, more recent records may exist. Hence, the AOJ should obtain all pertinent VA treatment records dated since August 2017. Additionally, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to include as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1) (2012); but see also 38 U.S.C. § 5103(b)(3) clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C §§ 5103, 5103A (2012); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted (to include obtaining further medical opinion, if appropriate) prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Re-send to the Veteran (at his current, correct address in Arizona (NOT the prior address in California), as listed on BVA correspondence dated August 8, 2017) a copy of the December 2016 SSOC on the claim for service connection for a pulmonary/respiratory disability. Afford him and his representative an appropriate opportunity for response. 2. Obtain from the Loma Linda VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that the requested actions have been accomplished, to specifically include ensuring that a copy of the December 2016 SSOC is mailed to the Veteran's correct address of record in Arizona, (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include obtaining further medical opinion, if appropriate), if any additional evidence is added to the claims file since issuance of the December 2016 SSOC, readjudicate the expanded claim on appeal in light of all pertinent evidence (to particularly include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).