Citation Nr: 21027390
Decision Date: 05/05/21	Archive Date: 05/05/21

DOCKET NO. 19-28 503
DATE: May 5, 2021

REMANDED

Entitlement to service connection for a respiratory condition, including chronic obstructive pulmonary disease (COPD), bronchitis, and asthma, to include as due to exposure to asbestos, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1961 to July 1963.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs Regional Office (RO).

In December 2019, the Veteran testified at a Board videoconference hearing before the undersigned.  A copy of the transcript of that hearing has been associated with the claims file.  At that time, the Board held the record open for 90 days for the Veteran to submit additional relevant evidence.

The Board remanded the claim in April 2020 for additional development.

COPD

In April 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to verify the Veteran's reports of exposure to asbestos during service and to obtain a VA examination.  With regard to verifying the Veteran's reports of exposure to asbestos, the Board requested the AOJ to associate with the claims file all requests sent and responses received.  

However, a review of the claims file shows that no attempt was made to verify the Veteran's reported in-service exposure to asbestos as directed by the Board.

Additionally, the requested VA examination was obtained in January 2021.  The examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran's diagnosed COPD and asthma were etiologically related to service.  However, a review of the rationale shows that the examiner based this opinion, in part, on a finding that "it is not proven in the Veteran's STRs any confirmed exposure to asbestos."

Accordingly, a Remand is necessary to develop the Veteran's asserted asbestos exposure as directed by the April 2020 Board Decision.  Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action.  Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand).

The matter is REMANDED for the following action:

1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file.

2. Conduct any further development deemed necessary and attempt to confirm whether the Veteran had exposure to asbestos during service.  If multiple requests are required to obtain all the information sought, they should be made.  All requests and responses received from each contacted entity should be associated with the claims file.  If the requested records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any records in his possession.

3. After completion of item 2 above, if asbestos exposure is confirmed, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed respiratory condition.  The examiner should provide the following opinions:

For any respiratory condition, to include COPD, asthma and bronchitis, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the respiratory condition is etiologically related to the Veteran's service, to include as due to any confirmed exposure to asbestos.  Explain why or why not.  

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Lamb, 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.