Citation Nr: 21074200 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 12-25 363 DATE: December 14, 2021 REMANDED Entitlement to service connection for a pulmonary disability is remanded. Entitlement to service connection for a heart disability is remanded. REASONS FOR REMAND The Veteran served under honorable conditions in the United States Navy on active duty from August 1971 to October 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2011 rating decision by the Veterans Benefits Administration (VBA). The Veteran testified before a Veterans Law Judge (VLJ) in June 2013. As the VLJ that held the hearing is no longer employed by the Board, the Board offered the Veteran an opportunity for another hearing in January 2021. However, the Veteran indicated he did not wish to attend another hearing in February 2021 and has not requested another hearing to date. The Board remanded these matters in January 2015, December 2015, July 2017, and August 2018 for additional evidentiary development. In a March 2021 decision, the Board denied the Veteran's claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In September 2021, CAVC granted a Joint Motion for Remand (JMR), vacated the Board's decision, and remanded these matters for action consistent with the terms of the JMR. The JMR notes the Board must address the Veteran's contention that VBA failed to obtain missing service records including several pages from his separation examination. It also notes that the Veteran and his attorney request that VA obtain outstanding VA treatment records as well before readjudicating the claims. In a November 2021 brief, the Veteran's representative also requests that VBA obtain a new VA examination of the Veteran's heart and lungs to correct deficiencies in the May 2019 examinations. Specifically, the representative asserts the May 2019 examiner failed to address evidence indicating that although they may have been asymptomatic for years, the Veteran's disabilities may be still be related to an in-service fall and right flank injury. See August 2017 letter from Dr. R.I.; May 2017 letter from Dr. Z.V. The brief also indicates there are missing VA treatment records including from Fort Worth VA prior to 2004 and since June 2020. On remand, VBA should address the concerns outlined in the JMR and the November 2021 brief. The Board REMANDS these matters for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records from Fort Worth VA prior to 2004 as well as missing records since June 2020. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. VBA should ensure that it has associated all available service treatment records and service personnel records pertaining to the Veteran with the claims file. VBA should make a formal finding on the availability of any missing records including a finding on whether additional efforts to obtain such records would be futile. See 38 C.F.R. § 3.159(c)(2). 3. After associating all outstanding records with the claims file, VBA should obtain additional medical opinions on the etiology of the Veteran's heart and lung disabilities. VBA should provide the examiners with a complete copy of the claims and ensure the examiners' opinions address the following concerns: (a.) The VA examinations should identify all disabilities associated with the Veterans lungs and heart based on a review of the claims file and an examination of the Veteran if the examiners determine an additional examination is necessary. (b.) The examiners should opine whether it is at least as likely as (an approximate balance of negative and positive evidence) that the Veteran's heart and lung disabilities manifested during or were otherwise caused by events during the Veteran's military service, to include a fall and right flank injury. The examiners should address prior findings in the record from the Veteran's treatment providers indicating that a relationship between the flank injury and respiratory disability is possible or plausible. See August 2017 letter from Dr. R.I.; May 2017 letter from Dr. Z.V. (c.) The VA respiratory disability examiner should opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's heart disabilities were caused by his lung disabilities. See, e.g., May 2019 VA respiratory examination (noting that the cardiomegaly often results from respiratory conditions). (d.) The VA respiratory examiner should opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's heart disabilities were aggravated by his lung disabilities. For secondary service connection, temporary aggravation may suffice. Ward v. Wilkie, 31 Vet. App. 233 (2019). (e.) If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.