Citation Nr: 21069171
Decision Date: 11/17/21	Archive Date: 11/17/21

DOCKET NO. 17-40 107
DATE: November 17, 2021

REMANDED

Entitlement to service connection for a respiratory disability is remanded.

Entitlement to service connection for bilateral hearing loss is remanded.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Coast Guard from March 1983 to June 1992, and in the Air Force from December 1977 to December 1981 and from December 1993 to April 1994.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss and asthma claimed as lung condition.  In July 2013 the Veteran filed a notice of disagreement (NOD) and in July 2017 the RO issued a statement of the case (SOC).  In July 2017 the Veteran filed a substantive appeal (via VA Form 9).

In April 2019 the Board remanded the Veteran's claim for further evidentiary development, specifically, to schedule the Veteran for a VA examination to determine the etiology of his claimed respiratory disability and bilateral hearing loss.  Subsequently, the Veteran identified VA treatment records that are not associated with his claims file and another remand is required in order to obtain these records, prior to addressing whether the Veteran failed to appear for the scheduled examinations without good cause pursuant to 38 C.F.R. § 3.655.

REASONS FOR REMAND

Entitlement to service connection for bilateral hearing loss and a respiratory disability are remanded. 

On a May 2021 Supplemental Claim Application (VA Form 20-0995) the Veteran stated there were outstanding relevant VA treatment records not associated with his claims file.  This included VA treatment records from the G.V. Montgomery VA Center (from August 2010 to November 2019), the Kosciusko VA Clinic (from January 2014 to October 2018), and the Memphis VA medical center (from February 2019 to March 2020).  To date, there are medical records from these facilities associated with the Veteran's file, however, not all of the dates the Veteran specified.  

Any VA treatment records are within VA's constructive possession and must be obtained regardless of their relevance as long as they are sufficiently identified.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance); see also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan).  Therefore, a remand is required to allow VA to obtain these records. 

The matters are REMANDED for the following action:

Ask the Veteran to identify the location and name of any VA facility where he has received treatment for a respiratory disability or hearing loss, to include the dates of any such treatment.

Undertake appropriate action to obtain the Veteran's outstanding VA treatment records from the G.V. Montgomery VA Center for the period from August 2010 to November 2019, the Kosciusko VA Clinic for the period from January 2014 to October 2018, and the Memphis VA medical center for the period from February 2019 to March 2020; and all such relevant records from any other sufficiently identified VA facility.

After the above development, readjudicate the issues of entitlement to service connection for a respiratory disability and bilateral hearing loss.  If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran a supplemental statement of the case that considers all additional relevant evidence received, and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	James R. Miller, Associate 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.