Citation Nr: A25041212 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 230720-362989 DATE: May 6, 2025 REMANDED Entitlement to service connection for a lung condition, including asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to November 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2023 rating decision. The Veteran testified before another Veterans Law Judge in October 2023. A transcript of the hearing is of record. The Veteran appealed the February 2024 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2024 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's February 2024 decision to the extent that it denied service connection for a lung condition. Regrettably, to ensure compliance with the JMPR, additional development is necessary before the Veteran's claim can be adjudicated. The JMPR found the Board erred when it failed to ensure VA satisfied its pre-decisional duty to assist when it failed to ensure VA notified the Veteran of relevant private records and request a release for such private records. Specifically, a March 17, 2023, VA primary care note recorded that the Veteran was followed by a pulmonologist in the community. The record indicates that no attempts were made to obtain these private treatment records. Considering the above, the Board finds that a remand is necessary to attempt to obtain the outstanding private treatment records identified by the Veteran. Importantly, the Veteran's representative, or the Veteran has not provided these records themselves, even following the joint motion. It is important for the Veteran to understand that the failure of the Veteran's representative at the Court to submit these records following this joint motion (or, at minimum, to ask the Veteran to obtain these records) has delayed the full adjudication of this case. There are records that have been submitted with treatment from August 15, 2023. However, these records do not contain the treatment records prior to August 15, 2023, as noted by the JMPR. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his private pulmonologist. Make two requests for the authorized records from his pulmonologist, unless it is clear after the first request that a second request would be futile. Provide to the Veteran and representative a written notification of the specific records that could not be obtained, explaining the efforts VA has made to obtain this evidence, and describing any further action VA will take to develop the claim. The Veteran and representative should be allowed an opportunity to respond. If possible, the Veteran himself should submit this evidence. Again, any help would be appreciated. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cochran, Laura 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.