Citation Nr: 18153752 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 08-16 566A DATE: November 28, 2018 REMANDED Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), claimed as breathing problems and a lung condition, is remanded. Entitlement to service connection for a dental disability, claimed as loss of teeth, is remanded. REASONS FOR REMAND The Veteran had active service from September 1962 to November 1975, to include service in the Republic of Vietnam. The Veteran’s decorations for his active service include a Purple Heart and a Vietnam Cross of Gallantry with Palm. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In December 2009, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. This claim was previously before the Board in July 2007, August 2010, and December 2015, at which times it was remanded for additional development. Remand is necessary for additional development prior to adjudication. Service Connection – Lung Disability and Dental Disability After a review of the record, the Board finds that there has not been substantial compliance with the Board’s December 2015 remand directives. The remand directed that the RO make two attempts to obtain any private medical evidence identified, unless the first attempt demonstrated that further attempts would be futile. A review of the record shows the RO made one attempt to obtain private medical evidence by requesting the Veteran complete and return a VA Form 21-4142a in correspondence dated April 28, 2016. The Veteran did not respond and the RO did not make further attempts to obtain any private medical evidence identified. The RO did not indicate, nor does the record show, that any further attempts would have been futile. Rather, the record shows that some private medical treatment records were obtained from private treatment providers as indicated in the Board’s December 2015 remand. The Board finds that the RO has not shown that reasonable attempts were made to obtain all private medical evidence identified in the Board’s December 2015 remand directives, nor that further attempts would be futile. Specifically, the RO did not obtain private treatment records from Dr. Oros, Dr. Lousher, Dr. Olson, Dr. Louise, and Dr. Callahan. As such, it is still unclear whether records from these providers are unavailable. Accordingly, the RO must make reasonable attempts to obtain any medical evidence identified unless further attempts would be futile. See Stegall v. West, 11 Vet. App. 258 (1998). The matters are REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from March 2008 to the present. All attempts to obtain these records must be documented in the claims file. 2. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for all private treatment records related to any disability on appeal, to include, Dr. Ramirez Oros, Dr. Lousher, Dr. Olson, Dr. Louise., and Dr. Callahn. If the Veteran submits a VA Form 21-4142 that is insufficient for further action, he should be so notified. Any such notification should be properly documented in the claims file. The RO must make 2 attempts to obtain any private medical evidence identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Then, schedule the Veteran for a VA respiratory examination to determine the etiology of any diagnosed respiratory disability present during the pendency of the appeal, to include COPD. a. Identify all diagnosable respiratory disabilities, to include COPD, bronchitis, and asthma. In so opining, the examiner should reconcile his or her diagnoses with the diagnoses of record. b. For any diagnosed respiratory disability, the examiner should opine whether it is at least as likely as not (a 50 percent or higher degree of probability) that it is related to in-service or post-service tobacco use. c. For any diagnosed respiratory disability, the examiner should opine whether it is at least as likely as not (a 50 percent or higher degree of probability) that it began in service, is caused by service, or is otherwise related to service (other than tobacco use), to include the Veteran’s assertions regarding in-service herbicide exposure weakening his immune system. In rendering the requested opinion, the examiner should expressly address whether the onset and course of any diagnosed respiratory disability and its relationship, if any to the Veteran’s history of tobacco use. In so opining, the examiner should address the October 1963 STR noting the Veteran was coughing up blood, STRs dated from May 15, 1972 to May 18, 1972 indicating that the Veteran was hospitalized for hyperventilation and the October 1975 report of medical history indicating the Veteran experienced shortness of breath. A complete rationale for all opinions must be provided. 4. Then, obtain an addendum opinion from the VA examiner who conducted the September 2010 VA dental examination, or, if unavailable, another appropriate examiner. If the examiner determines that an additional examination of the Veteran is necessary to provide the requested opinions, then one should be scheduled. The examiner should opine based on the entire medical history, to include the Veteran’s report of medical examination at entrance, whether it is at least as likely as not (50 percent probability or more) that any of the Veteran’s currently diagnosed dental disabilities are a result of an incident in service, to include herbicide exposure, lack of dental treatment during his service in Vietnam, lack of proper dental care availability during his service in Vietnam, and exposure to bromine treated water during his service in Vietnam. A complete rationale for all opinions must be provided. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel