Citation Nr: 21025951
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 17-29 625
DATE: April 29, 2021

REMANDED

Entitlement to service connection for lung cancer, to include as due to exposures in Southwest Asia, is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1989 to September 2011.

This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2017, the Board issued a decision denying the Veteran’s claims.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In June 2018, the Court vacated the November 2017 Board decision and remanded the issue for further consideration consistent with a Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA Secretary.  In January 2019, the Board remanded the claims for actions consistent with the June 2018 JMPR.

 

1. Entitlement to service connection for lung cancer is remanded.

VA’s duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Once the duty to assist is triggered, “VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency.” 38 C.F.R. § 3.159(c)(2).

In December 2019, the Veteran was afforded a VA examination pursuant to the January 2019 Board remand.  In the examination report and his opinion, the December 2019 VA examiner references records contained in the Joint Legacy Viewer (or “JLV”) and Vista Imaging.  However, those records have not been associated with the claims file.  Thus, a remand is required for the VA to obtain those records and associate them with the claims file.

2. Entitlement to TDIU is remanded.

The consideration of entitlement to TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain and retain substantially gainful employment.  38 C.F.R. § 4.16.  The matter of TDIU is thus inextricably intertwined with the Veteran’s service connection claim being remanded herein.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Remand of the inextricably intertwined TDIU claim is therefore also required.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding relevant medical treatment records that are located in records systems, to include the Joint Legacy Viewer (“JLV”) and Vista Imaging, as referenced by the December 2019 VA examiner, in accordance with the duties set forth in 38 C.F.R. § 3.159(c).  These imaging records and reports must be incorporated into the electronic claims file.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

T. J. ANTHONY

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Hetman

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.