Citation Nr: 21010775 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-28 670 DATE: February 25, 2021 REMANDED Service connection for a pulmonary disability, to include as due to asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1969 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for a pulmonary disability was denied in November 2019. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Remand (JMR), the parties agreed to remand and vacate the Board’s November 2019 decision that denied entitlement to service connection for a pulmonary disability. The Court, in an August 2020 order, granted the JMR, vacating the Board’s decision and remanding the matter to the Board for further development consistent with the terms of the JMR. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. Service connection for a pulmonary disability, to include as due to asbestos exposure, is remanded. The parties to the JMR found that the Board erred in not complying with VA’s duty to assist in obtaining outstanding VA treatment records. In compliance with the terms of the JMR, the Board finds that a remand is necessary to obtain missing VA treatment records. In a June 2015 progress note, the Veteran’s physician indicated that if the Veteran was determined to be high risk for lung cancer, then he should get a follow-up chest CT in 3-6 months. See July 2015 Medical Treatment Records. Furthermore, in March 2016, the Veteran stated he was scheduled to get a scan on his lungs on March 18, 2016 at the Beckley VAMC. See March 2016 Statement. Those records, if any, have not been associated with the Veteran’s file. Because the clinical records of the treatment, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Additionally, and as noted in the JMR, in light of the Veteran serving on a Naval ship as a radio operator in the 1970s, it is likely he was exposed to some amount of asbestos. Thus, a remand is also necessary to afford the Veteran a VA examination to determine whether he has any pulmonary conditions related to in-service asbestos exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran’s June 2015 VA treatment records reflect findings of tiny left and right lower lobe nodules; the Veteran has asserted that this condition is due to his in-service exposure to asbestos; and has provided lay evidence linking the two; however, there is insufficient evidence of record to decide the claim. Consequently, remand for an examination and etiology opinion is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records not already associated with the Veteran’s claims file. Associate with the claims file all potentially relevant documents, including any lung scans from 2015 and 2016. 3. After the completion of the above instructions, and after any additional records are associated with the claims file, arrange to provide the record on appeal to a VA examiner to determine the etiology of Veteran’s pulmonary disability. The entire claims file must be made available to and be reviewed by the examiner. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s pulmonary disability had its onset in, or was otherwise etiologically related to active service, to include asbestos exposure. The examiner is directed to consider and specifically address/weigh the Veteran’s lay statements and the circumstances of his service (i.e., asbestos exposure aboard the U.S.S. Intrepid) in forming any opinion rendered. The examiner must provide the rationale for all proffered opinions. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.