Citation Nr: 1802422 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-33 750A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a back disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1980 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. In May 2016, the Board remanded the case for additional development and it now returns for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, in the May 2016 remand, the Board noted that the Veteran claimed that he received treatment for back pain at the base hospital in Katterbach, Germany, during the summer of 1981. However, there were no service treatment records reflecting treatment at such facility. In this regard, the Board further observed that, in July 2014, a search was made for service treatment records from Katterbach dating from October 1 to December 31, 1981; which was unsuccessful. However, as the Veteran subsequently maintained that he was treated for back pain in the summer of 1981 at the U.S. military installation in Katterbach, Germany, the Board remanded in order for the AOJ to conduct a new search for such records. Thereafter, the AOJ contacted the National Personnel Records Center (NPRC) in May 2016 to request the Veteran's complete medical/dental records (STRs) and service personnel records. An August 2016 response from NPRC stated that all available requested records were shipped to the contracted scan vendor for upload into the Veterans Benefits Management System (VBMS) in June 2016. However, the records uploaded does not contain any treatment and/or clinical records referable to the Veteran's treatment for back complaints at a base hospital located in Katterbach, Germany, in the summer of 1981 and the AOJ did not issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. Moreover, the AOJ did not make all reasonable attempts to obtain such records. In this regard, the May 2016 Board remand directives advised the AOJ that clinical records may be filed under the facility's name rather than the Veteran's name. However, the AOJ did not conduct such search using the facility's name. Thus, a remand is necessary so that the AOJ can conduct a new search for the Veteran's STRs. Accordingly, the case is REMANDED for the following action: 1. Request any treatment and/or clinical records referable to the Veteran's treatment for back complaints at a base hospital located in Katterbach, Germany, in the summer of 1981. If necessary, review service personnel records to determine the specific dates of the Veteran's assignment to Ansbach and/or Katterbach, Germany. Be advised that clinical records may be filed under the facility's name rather than the Veteran's name. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After receiving any outstanding records, the AOJ should review the entirety of the file and conduct any additionally indicated development, to include obtaining any addendum opinions deemed necessary for the adjudication of the claim. 3. After completing the above actions and any other development as may become indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the claim based on the entirety of the evidence. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 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). _________________________________________________ A. JAEGER 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).