Citation Nr: 21074873
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 21-00 863
DATE: December 16, 2021

REMANDED

Entitlement to service connection for pulmonary emphysema, to including as secondary to asbestosis, is remanded.

Entitlement to service connection for asthma, to including as secondary to asbestosis, is remanded.

Entitlement to service connection for mesothelioma, to including as secondary to asbestosis, is remanded.

REASONS FOR REMAND

The Veteran had active service from September 1943 to April 1946.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In March 2018, the Veteran filed a Notice of Disagreement (NOD) with several issues.  However, on the Veteran's October 2021 VA Form 9, he limited his appeal to the issues of entitlement to service connection for emphysema, asthma and mesothelioma.  

All matters are remanded.

The Veteran contends that his claimed disabilities are secondary to his service-connected asbestosis.  See January 2017 VA Form 21-526 EZ.  He submitted several private treatment records which indicate that the Veteran may have diagnoses of asthma, emphysema and mesothelioma.  However, the records appear to be incomplete.  See October 2016 from Dr. K.F. which indicates that he has treated the Veteran for 16 years.  Further, in August 2021, the Veteran was afforded a VA examination where the examiner noted that the Veteran was treated by a private pulmonologist.  On remand, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records related to his claimed disabilities. Up to date VA treatment records should also be obtained and associated with the Veteran's electronic claims folder.

The matters are REMANDED for the following action:

1. Contact the Veteran and request that he provide or authorize the release of any private treatment records where he received treatment for his claimed disabilities, not already of record, that are relevant to his claim.  See October 2016 from Dr. K.F. which indicates that he has treated the Veteran for 16 years; August 2021 VA examination report which indicates that the Veteran has been treated by private pulmonologist.

If, after making reasonable efforts to obtain non-VA records the Agency of Original Jurisdiction (AOJ) is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond.

2. Then, readjudicate the Veteran's claims after ensuring that any other appropriate development is complete (if private treatment records indicate confirmed diagnoses of the claimed disabilities, then further clarification via a medical addendum opinion may be necessary). If the benefits sought remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for appellate review, if otherwise in order.

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Baskerville

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.