Citation Nr: 18119554 Decision Date: 07/18/18 Archive Date: 07/18/18 DOCKET NO. 10-19 861 DATE: July 18, 2018 REMANDED Entitlement to service connection for a lung disorder is remanded. REASONS FOR REMAND The Veteran had active service from August 1969 to September 1970. This appeal comes before the Board of Veterans Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran provided testimony at a hearing before a Veterans Law Judge (VLJ) in March 2012. This VLJ has since retired. In April 2018, the Board submitted a letter to the Veteran indicating that the VLJ who conducted the hearing is no longer employed by the Board. The letter provided the Veteran with an opportunity to present testimony at a new hearing before a different VLJ. In a response received in June 2018, the Veteran indicated that he did not wish to appear for another hearing. A transcript of March 2012 hearing is of record. This case was last before the Board in August 2015 when it was remanded for additional development. It has since been returned to the Board for further appellate action. Entitlement to service connection for a lung condition. This issue must be remanded to obtain compliance with a prior remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In December 2014, the Board remanded the claim, noting that a prior remand directed the RO to obtain certain private medical records dated from 1993 to 1994. and directed the RO or the AMC to attempt to obtain the evidence one more time. The remand instructions directed that, if the RO was unable to obtain any of the outstanding evidence, it should inform the Veteran and his representative of the attempts made to obtain the evidence and that the Veteran should obtain the evidence if possible. The RO sent a letter to the Veteran in February 2015 requesting that he provide any information he may have regarding the outstanding records. The Veteran did not respond to this request for information in any way. In an August 2015 remand, the Board determined that remand was again required because the RO did not inform the Veteran and his representative of the inability to obtain the medical records identified, of the attempts made to obtain this evidence, or that the Veteran should obtain the evidence if possible. Such notification was required as set out in the Board’s remand instructions. On remand, in October 2015 the Veteran was provided with the VA Form 21-4142 “Authorization to Disclose Information” and VA Form 21-4142a “General Release for Medical Provider Information.” He was also informed that he “may want to obtain and send [the VA] the records [himself], if possible.” The Veteran has not responded to this notice in any way. In a submission to the Board, the Veteran’s prior representative stated that although the Veteran did not respond, the October 2015 letter failed to comply with the Board’s remand instructions. Specifically, “the AMO did not apprise the [V]eteran of the attempts they had made to obtain the records, did not ask him for information pertaining to the records, and did not apprise him that he should submit the evidence on question if possible.” The Board finds that the AMO did comply with the Board’s remand instruction to elicit information from the Veteran by providing him with the VA Form 21-4142 and VA Form 21-4142a and did notify him that he should the evidence if possible. However, the AMO did not inform the Veteran and his representative of the inability to obtain the medical records identified and the attempts made to obtain this evidence as instructed by the Board in the prior remands. As such, another remand is warranted. The Board emphasizes that while VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street and that if a Veteran wishes help he cannot passively wait for it). This is especially true in matters relating to private records, to which VA has no access or knowledge without the Veteran’s cooperation. The matter is REMANDED for the following action: 1. Request that the Veteran provide any additional information he may have regarding his medical treatment at St. Joseph’s Hospital and with the Christus St. Michael Health System which could aid in obtaining these records. Namely, provide the Veteran with the VA Form 21-4142 “Authorization to Disclose Information” and VA Form 21-4142a “General Release for Medical Provider Information.” The Veteran should complete these forms and submit them to the AMO. If additional information is received, attempt to obtain the evidence based on this new information. If the RO or the AMO is unable to obtain any of the outstanding evidence identified by the Veteran, it must inform the Veteran and his representative that the records were not obtained, of the attempts made to obtain the evidence, and that the Veteran should obtain and submit the evidence if possible. 2. The RO or the AMO should also undertake any other development it determines to be warranted. 3. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel