Citation Nr: 21014718 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-28 774 DATE: March 15, 2021 REMANDED Service connection for dementia is remanded. Service connection for a lung disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1956 to June 1960, and United States Coast Guard from August 1960 to November 1976, including foreign and/or sea service. Regrettably, he died in January 2018. The appellant has been recognized as a properly substituted claimant. See 38 U.S.C. § 5121A; see also VA letters dated April 2018 and October 2019 (identifying the appellant as a substituted claimant). In May 2017 and given the Veteran’s inability to testify on his own behalf, the appellant offered testimony during a videoconference hearing. A transcript of this proceeding has been associated with the Veterans Appeals Control and Locator System (VACOLS) case entry for this appeal stream. These appeals were most recently remanded by the Board in July 2020 for additional development, which has since been completed. Of note, the Veteran’s in-service exposure to asbestos was conceded in the above remand. In January 2021, the appellant was informed that the Veterans Law Judge (VLJ) who presided over the 2017 hearing was no longer with the Board, and offered a hearing before a different VLJ. As she did not request a new hearing within 30 days of this notice, the Board may proceed with its review of the matters on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of these appeals. First, the record reflects that the Veteran was seen for both mesothelioma and asbestosis by VA physicians during his lifetime. See May 2017 private treatment letter. The Board has repeatedly instructed the Regional Office (RO) to obtain these records. See September 2017 and July 2020 Board decisions. However, such efforts do not appear to have been undertaken. Although it appears that the RO requested the appellant complete and return VA Forms 21-4142 and 21-4142a, there is no documented memorandum of unavailability of the requested records within the Veteran's claims file. As these records are directly relevant to this appeal, efforts to obtain them are required. Further, the record reflects private treatment for the claimed disorders by multiple private physicians, including Drs. M. and B. In November 2015, the RO requested the Veteran’s records from these physicians. However, VA’s letters improperly limited the records request to those beginning in July 2015, when the identified treatments occurred far earlier than this date. In July 2020, the Board instructed that new authorizations be obtained from the appellant, followed by additional efforts to obtain the identified private records. Although new authorizations were requested from the appellant, she provided a July 2020 response in which she noted her confusion regarding this request. Therein, she noted her belief that the necessary authorizations were already of record. The RO again attempted to solicit the necessary forms in August 2020, but this letter was returned as undeliverable. The RO did not make any subsequent efforts to contact the appellant, to include with any explanation as to why new authorization forms were needed. Upon this history, and given the appellant’s clear confusion on the matter, the RO must undertake additional efforts to explain the records request process to the appellant and again solicit the necessary authorization forms. Finally, VA addendum opinions are required for these appeals. The Board notes that, while a VA addendum opinion was procured in October 2020, the VA examiner only appeared to address the issue for service connection for a lung disorder. The VA examiner stated generally that it was her opinion that it was less likely than as not that the disability had its onset during service or was otherwise medically-related to service, including exposure to asbestos therein, but no explanation/rationale was provided as to why dementia was not related to the Veteran’s service/in-service exposure to asbestos. As the July 2020 Board remand requested that a complete and clearly stated rationale shall be provide, the Board finds that there has not been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, on remand, a new VA addendum opinion must be procured to address the etiology of the Veteran’s dementia. Although an addendum opinion as to the lung disorder was obtained in October 2020, this opinion is inadequate for several reasons, to include the examiner’s failure to address the Veteran’s reported history of in-service exposure to methyl ethyl keytone. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, this opinion is largely based upon the absence of corroborating treatment records from the claims file, which are being requested herein. Therefore, another VA addendum opinion must be obtained. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all VA treatment records for the Veteran, particularly those related to his history of dementia or various lung disorders, including mesothelioma and asbestosis. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the appellant and her representative should be so notified in writing. 2. Confirm the appellant’s current address. Thereafter, contact the appellant and request updated authorization forms for release of all known private medical records to VA, including from Drs. M. and B. Clearly explain to the appellant why new authorizations are necessary at this time. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the appellant of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Obtain a VA addendum opinions addressing the questions below.  The examiner is hereby advised that the Veteran died in January 2018 and is unavailable for contemporaneous evaluation. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred.   In particular, the examiner is asked to offer medical opinions as to the following: a) Indicate whether the Veteran demonstrated dementia and/or a lung disorder, to include asbestosis or mesothelioma, during the period on appeal. b) For each identified disability, opine as to whether it is at least as likely as not (50 percent probability or more) that the condition began during a period of active duty service, was caused by service, or is otherwise related to service, to include in-service exposure to asbestos and/or chemical agents such as methyl ethyl keytone, due to the Veteran’s military occupational specialty as an engineman. In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.   \ A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.