Citation Nr: 1754971 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-03 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for back disability. 2. Entitlement to service connection for depression, including as secondary to back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to February 1982. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In an October 2010 rating decision, the RO denied service connection for a back disability. In a July 2012 rating decision, the RO denied service connection for depression. In April 2016, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In July 2016, the Board remanded the case to the RO for additional action. Although some additional action was taken, further additional action is needed. While the Board regrets additional delay, further action is needed to ensure that every appropriate effort has been made to obtain relevant records. Therefore, the appeal is again REMANDED to the Agency of Original Jurisdiction, in this case the RO. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has back disability that began with, and is due to, injury that he sustained during service. He reports that during service he sustained back injury when he fell off of a truck. He states that, because of his location, he received treatment not at a military facility but at the VA Medical Center (VAMC) in Tuskegee, Alabama. He reports that back pain continued after the injury and through the present. In addition, the Veteran contends that he has depression that is secondary to his back disability, in that his chronic severe back pain causes or aggravates his depression. The RO sought and obtained records of medical treatment of the Veteran. His claims file contains medical records from his service. No records of treatment at the Tuskegee VAMC or any other VA facility are associated with those records. In the July 2016 Board remand, the Board instructed the RO to take additional steps to obtain the records of treatment of the Veteran at a VA facility during his service. The Board instructed that, if after thorough efforts the RO concluded that further efforts would be futile, the RO was to make a formal finding to that effect. The RO made further efforts to obtain records, and obtained records of treatment of the Veteran at the Tuskegee VAMC in August 1985, after his separation from service. In an informal hearing presentation that the Board received in November 2017, the Veteran's representative requested further search for the records of VA treatment during the Veteran's 1979 to 1982 service. The representative noted that records of VA outpatient treatment, such as the Veteran reportedly received during service, are usually archived separately from VA inpatient treatment records. The representative also stated that records of VA treatment of a service member on active duty are usually sent to be included with the individuals service treatment records. The representative therefore suggested a new request from the National Personnel Records Center for the Veteran's service treatment records. The Board is remanding the case again for additional efforts to obtain the records. Accordingly, the case is REMANDED for the following action: 1. Make a new request from the National Personnel Records Center and any other appropriate archival agency for the Veteran's complete service treatment records, to include records of treatment at service facilities and any affiliated records of treatment during service at a VA facility. Document and record in the claims file requests and responses. 2. Request again from VA medical facilities and appropriate archival agencies, records, including archived records, for any and all outpatient and inpatient treatment of the Veteran in 1979 through 1982 at a VA medical facility in Tuskegee, Alabama. Document and record in the claims file requests and responses. 3. If, after all procedurally appropriate actions to locate and secure the VA treatment records have been made, the RO concludes that such records do not exist, or concludes that further efforts to obtain the records would be futile, the RO is to make a formal finding to that effect. The RO must also provide the Veteran and his representative with notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) notice that the Veteran is ultimately responsible for providing the evidence. Then give the Veteran and his representative an opportunity to respond. (CONTINUED ON NEXT PAGE) 4. Thereafter, review the expanded claims file and review the remanded claims. If any of those claims remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review, if otherwise in order. The Board implies no opinion as to the ultimate outcome of the matters that the Board has remanded. The appellant has the right to submit additional evidence and argument on those matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).