Citation Nr: 21041615 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-28 774 DATE: July 9, 2021 REMANDED Entitlement to service connection for dementia is remanded. Entitlement to service connection for a lung disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United State Navy June 1956 to June 1960 and in the United States Coast Guard from August 1960 to November 1967 including foreign and/or sea service. He died in January 2018. The Appellant is his surviving spouse. This case has been before the Board multiple times, most recently in March 2021 when it was remanded for additional developments. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for dementia is remanded. Entitlement to service connection for a lung disorder is remanded. The Board has remanded the appeal several times to obtain all outstanding relevant VA treatment records. In both September 2017 and July 2020, the Board identified that the Appellant indicated that the Veteran "had additional workup within the US Military/VA system with associated diagnoses for his lung disease or mesothelioma and asbestosis." In response to the most recent remand, the AOJ provided a screenshot indicating that there were "no progress notes found." The Veteran died in January 2018, so there would be no records of ongoing treatment. There is no indication that VA records have been sought for the Veteran for the period prior to his death. Any VA treatment records are within VA's constructive possession, and in this case are VITAL to the issues on appeal. A remand is required to allow VA to obtain them. Additionally, in the opinion obtained on remand, the May 2021 VA examiner identified that there were no VA or military treatment records and no treatment records dating back to 1994. The examiner noted that they strongly suspected "but cannot prove without access to records," that given the Veteran's military career and probable asbestos exposure he had surveillance assessment at some point to determine if he had asbestosis. However, the examiner provided a negative nexus opinion, in part on a rationale based on the absence of evidence that such records would have shown. As the claims are once again remanded, the appellant should again be asked to complete a VA Form 21-4142 authorization for VA to obtain outstanding private treatment records from Dr M. and Dr. B. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period prior to his death in January 2018, to specifically include all treatment related to his history of demential and 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. Ask the appellant to complete a VA Form 21-4142 for Dr M. and Dr. B. The AOJ should clearly explain to the appellant why new authorizations are necessary at this time, and that duty to assist her is not a one-way street. Make two requests for the authorized records from Dr. M and Dr. B, unless it is clear after the first request that a second request would be futile. 3. After the completion of the above, obtain an addendum opinion from the VA examiner who provided May 2021 VA opinion, (or another appropriate provider if May 2021 examiner is unavailable) to determine the nature and etiology of any diagnosed lung disorder. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record, the examiner should answer the following: (a.) Identify all diagnosed lung disorders diagnosed during the period on appeal, to include whether the Veteran was diagnosed with asbestosis and/or mesothelioma. (b.) For each diagnosed lung disorder, is it at least as likely as not that the Veteran's that it had its onset in service, or is otherwise related to any incident of the Veteran's active duty service, specifically to include in-service exposure to asbestosis and/or chemical agents such as methyl ethyl ketone? Why or why not? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why this is so. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.