Citation Nr: 21065783 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-32 467 DATE: October 27, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1958 to March 1961. The Veteran died in August 2018. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, a hearing was held before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days to afford the Appellant an opportunity to submit medical evidence and obtain a favorable nexus opinion in this matter. Thereafter, the Appellant submitted general releases for VA to obtain medical records from three separate medical providers who the Appellant identified during the hearing as having had treated the Veteran prior to his death. See VA 21-4142a General Release for Medical Provider Information (May 2021). The Board recognizes that, at the hearing, it was argued that the Veteran submitted a claim for service connection for pulmonary fibrosis, among other things, shortly before his death. The VLJ clarified, on the record, that there was no claim pending at the time of the Veteran's death. The VLJ explained that, although the Veteran signed an application for disability compensation benefits the day before he died (August [REDACTED], 2018), the record shows that the claim was received by VA on the date of his death. See VA Form 21-526EZ received by the VA Claims Intake Center (August 22, 2018). As such, there was no pending claim for VA disability compensation at the time of the Veteran's death and thus, the only issue for appellate consideration before the Board is the claim for entitlement to service connection for the cause of the Veteran's death. See Hearing Transcript at 4 (April 2021). Furthermore, the Board notes that, at the hearing, the Appellant consented to the assistance of a third party who was not her authorized representative (Mr. D.B.). Although Mr. D.B. noted that he was employed as a Veterans Service Officer with the Indiana Department of Veterans Affairs, he was clear that he was not representing the Appellant in that capacity at the hearing this day. The record reflects that, following the hearing, the Appellant appointed The American Legion as her representative. See VA 21-22 Appointment of Veteran's Service Organization as Claimant's Representative (May 2021). It is also noted that the Appellant did not designate an authorized representative at any stage in the appeal prior to the execution of the VA Form 21-22 in May 2021 appointing The American Legion. Lastly, in September 2021, The American Legion, submitted a motion requesting a new hearing on this matter, asserting that the Appellant was not properly represented by an accredited and reasonably available representative at the April 2021 hearing. See Third Party Correspondence (September 2021). The Board has considered this motion. Pursuant to 38 C.F.R. § 20.700(a), an appellant is limited to one Board hearing following the filing of a Notice of Disagreement (NOD) with a decision of the Agency of Original Jurisdiction (AOJ). Requests for additional hearings may be granted for good cause shown. 38 C.F.R. § 20.700(a). For the reasons explained below, the Board finds that good cause has not been presented to warrant a grant for a second hearing at this juncture. Here, while the Board acknowledges that the Appellant was unrepresented at the hearing, the hearing transcript reflects the Appellant consented to participate in the hearing with full knowledge that she was unrepresented and that she was being assisted during the hearing by a third party, Mr. D.B., who was not her authorized representative in the appeal. See 38 C.F.R. § 14.627(q). Moreover, the Appellant's appointment of The American Legion as her representative after the hearing does not serve by that very fact or act (i.e. ipso facto) to invalidate the propriety of the hearing. In this case, the Board is satisfied that the Appellant had a full and fair hearing and had the opportunity to provide relevant argument and testimony that was material to the appeal. In view of the above, as no good cause has been shown in support of the request, the motion for a second Board hearing is denied. 38 C.F.R. § 20.700. The Appellant has not been deprived of due process of law. Further, the Appellant and her representative are advised that, unlike a final decision, this remand is interlocutory in nature and thus, the opportunity to request a second hearing remains in the event the claim is denied as a result of the AOJ's readjudication of the matter. See Quinn v. Wilkie, 31 Vet. App. 284, 290-91 (2019) (holding that an appellant is entitled to an additional Board hearing opportunity when a legacy appeal returns to the Board following remand even if the appellant appeared at a Board hearing prior to the remand). This case has been advanced on the docket (AOD) pursuant to 38 C.F.R. § 20.800(c). Entitlement to service connection for the Veteran's cause of death is remanded. The Appellant seeks entitlement to service connection for the cause of the Veteran's death. The Appellant contends that the Veteran's primary cause of death, listed as pulmonary fibrosis, due to or as a result of chronic obstructive pulmonary disease (COPD), is related to his in-service asbestos exposure on naval ships. See NOD (December 2018). The Board finds that further efforts must be made to ensure VA has satisfied its duty to assist the Appellant prior to adjudication of the claim. 38 C.F.R. § 3.159(c). As a preliminary matter, VA has conceded the Veteran had minimal exposure to asbestos based on his military occupation as a seaman while assigned to the USS Holder from May 1959 to March 1961. See Military Personnel Record & SOC (October 2019). It is also noted that, at the time of the Veteran's death, service connection had not been granted for any disabilities. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. Remand is necessary because the Appellant has not been properly notified with respect to VA's ability to obtain private treatment records she has identified. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b), (c)(1); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Appellant claims that the Veteran was treated at IU Health Methodist Hospital in Indianapolis for his various respiratory problems prior to his death. See VA 21-4138 (May 2019) & Hearing Transcript at 7-8 (April 2021). The claims file reflects that the Appellant authorized VA to obtain private treatment records from IU Health Methodist Hospital. VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs) (April 2019). A Report of Contact shows that in May 2019, the AOJ faxed a request for the Veteran's medical records to IU Health Methodist Hospital. See 21-0820 Report of General Information (June 2019). In June 2019, the AOJ was informed that the records were located at Ciox Health. However, it was noted that the records could not be released without securing proper authorization from the Appellant specifically naming Ciox Health on the form. The AOJ did not subsequently ask the Appellant to provide additional authorization to obtain the treatment records from Ciox Health, and, in June 2019, the AOJ notified the Appellant that there were no records found for the Veteran at IU Methodist Health. Therefore, while the AOJ has attempted to obtain the private treatment records from IU Health Methodist Hospital, the Board notes that the Appellant was led to believe that the records do not exist. However, the claims file reflects that the Veteran's medical records may in fact be stored at an alternate facility which requires a separate authorization. Following the hearing, VA received an unsigned VA Form 21-4142a General Release for Medical Provider Information that lists Dr. Laura Hinkle and Dr. Gabriel Bosslet of IU Health Methodist Hospital, Columbus Regional Health, and Dr. Bradley Morin of the Family Medical Center. See VA 21-4142a General Release for Medical Provider Information (May 2021). However, the most recent signed VA Form 21-4142 Authorization to Disclose Information to VA is dated in April 2019 and has thus expired. The Appellant should be informed that she should submit any medical treatment records in her possession, and that her VA Form 21-4142 submitted in April 2019 has expired and can no longer be used to obtain the Veteran's private treatment records, including those from medical providers listed on the VA Form 21-4142a submitted in May 2021. She should therefore be advised that in order for VA to obtain any medical records she must submit new VA Forms 21-4142 and 21-4142a. Given the above, remand is necessary to assist the Appellant in obtaining the medical records from all non-VA medical providers she has identified. The matter is REMANDED for the following action: 1. Provide the Appellant a letter enclosed with a VA Form 21-4142, Authorization and Consent to Release Information to VA. The letter should ask the Appellant to identify all outstanding, relevant treatment of the Veteran from private health care providers, including Dr. Laura Hinkle and Dr. Gabriel Bosslet of IU Health Methodist Hospital in Indianapolis, Indiana, The Lung Institute at Columbus Regional Health in Columbus, Indiana, and Dr. Bradley Morin of the Family Medical Center in Seymour, Indiana. Advise the Appellant that she must provide enough information to identify and locate the existing records, including the approximate time frame covered by the records. All attempts to obtain these records must be documented in the claims file. The Appellant must be notified of any inability to obtain the requested documents. See 38 C.F.R. § 3.159(c)(1). Allow an appropriate amount of time for response and complete any additional development resulting from the Appellant's response. If any records cannot be obtained, provide the Appellant with proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and give her the opportunity to obtain and submit these records herself. (Continued on the next page) 2. Undertake any further development indicated in view of the above development, to include, if warranted, obtaining a VA opinion pursuant to 38 U.S.C. § 5103A(a). See DeLaRosa v. Peake, 515 F. 3d 1319, 1322 (Fed. Cir. 2009). 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.