Citation Nr: 22013486
Decision Date: 03/09/22	Archive Date: 03/09/22

DOCKET NO. 17-09 452
DATE: March 9, 2022

REMANDED

Entitlement to a compensable rating for asbestosis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1955 to September 1958. He died in February 2021. The Appellant is his surviving spouse and has been recognized as the substitute appellant in this case for the purpose of processing this claim to completion.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

By way of background, a February 2019 Board decision denied the issue on appeal. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court").  The Court issued a Joint Motion for Remand (JMR) Decision in April 2020 vacating the Board's February 2019 decision and remanded the case back to the Board for disposition consistent with the Court's Order. The CAVC indicated that the Board failed to provide an adequate statement of reasons or bases and failed to obtain relevant private treatment records. A subsequent Board decision was issued in September 2020 which again denied the claim for a compensable rating for asbestosis. The Appellant appealed the September 2020 Board decision and the Court approved another JMR in October 2021 and vacated the September 2020 Board decision. In the September 2021 JMR, the CAVC found that the Board failed to make reasonable attempts to obtain outstanding treatment records including those from Dr. Hernandez at the VA Medical Center (VAMC) in Mt. Vernon, Washington. Additionally, CAVC ordered the Board to ensure that VA treatment records prior to November 2015 from the Phoenix, Arizona VAMC were of record. 

Entitlement to a compensable rating for asbestosis.

The Appellant through her representative asserts that the Veteran is entitled to a compensable rating for his asbestosis disability. 

In the September 2021 JMR, the parties agreed that the Board erred when it did not make reasonable attempts to obtain outstanding treatment records identified by the Veteran in September 2018 and November 2018 letters to include records by Dr. Hernandez at the VAMC in Mt. Vernon, Washington. Moreover, the parties agreed that the Board should ensure that VA treatment records pre-dating November 2015 from Phoenix, Arizona VAMC are of record.

Since the issuance of the September 2021 JMR, the record does not reflect that a request for records from Dr. Hernandez of the VAMC in Mt. Vernon, Washington has been conducted. To date, the file does not contain any records from Dr. Hernandez at the VAMC in Mt. Vernon, Washington. While the record contains numerous records from the Arizona VAMC that pre-date November 2015, however, it is unclear if this is a complete set of records. 

The Board must ensure that VA properly fulfills its duty to assist by retrieving relevant VA treatment records. Therefore, remand is required to retrieve these outstanding records before a decision on the merits can be issued. 

The matters are REMANDED for the following action:

1. The AOJ should follow the appropriate protocol and conduct all necessary development required for retrieving the outstanding medical records pertaining to the Veteran regarding his asbestosis disability from his prior physician, Dr. Hernandez at the VA Medical Center in Mt. Vernon Washington. 

2. The AOJ should follow the appropriate protocol and conduct all necessary development required for retrieving any outstanding medical records pertaining to the Veteran regarding his asbestosis disability from the Phoenix, Arizona VAMC that pre-date November 2015, as well as  any other relevant outstanding VA or private treatment records pertaining to his asbestosis disability.

	 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Dorsey-Kwansa, Associate 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.