Citation Nr: 18144660 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-28 800 DATE: October 25, 2018 REMANDED The issue of whether new and material evidence has been received to reopen the finally disallowed claim of entitlement to service connection for a lower right back injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from May 1970 to March 1974. This appeal to the Board of Veterans' Appeals (Board) arose from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in March 2013. The Veteran perfected an appeal. See September 2013 Notice of Disagreement (NOD); April 2016 Statement of the Case (SOC); June 2016 VA Form-9. Although the Board regrets the additional delay, after a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issue on appeal. The Board defers its determination of whether new and material evidence has been received, pending further development. In this regard, the record reflects that VA treatment records dated from 1994 to 2016 have been obtained. However, in his original claim for service connection in March 2008, the Veteran indicated that he had received treatment for his claimed low back condition at the Cincinnati VA Medical Center (VAMC) from 1985 to the present. An October 2008 rating decision reflects that only treatment reports from February 2007 through June 2008 were reviewed. The March 2013 rating decision on appeal notes treatment records from the Cincinnati VAMC from December 1994 through March 2013, as well as treatment records from the Cleveland VAMC from August 2012 through November 2012, and from the Honolulu VAMC from May 2011 through June 2011. The April 2016 SOC notes the treatment records from Cleveland and Honolulu, as well as treatment records from the Cincinnati VAMC from June 2008 to April 2016. Thus, the Board finds that although the Veteran has indicated that he received treatment at the Cincinnati VAMC beginning in 1985, the earliest treatment reports of record from that facility are from December 1994. Hence, more VA medical treatment records may exist. The procurement of potentially pertinent medical records referenced by the Veteran is required. See 38 C.F.R. § 3.159 (c)(2). Moreover, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, a search must be made for all outstanding VA treatment records dated from 1985 to the present. The Board is remanding this issue prior to consideration of new and material evidence because the records sought on remand are VA treatment records that potentially existed, but were not associated with the claims file, when VA first decided the claim. Thus, if obtained on remand, this claim would be reconsidered rather than reopened. See 38 C.F.R. § 3.156 (c)(1). Therefore, the Board finds that remand is appropriate to further develop the matter prior to consideration of whether new and material evidence has been submitted. Additionally, the Board notes that service treatment records (STRs) from the Veteran’s period of active duty are unavailable. The Veteran was notified in a Formal Finding of the Unavailability of Service Records in August 2008. Where, as here, the service records are incomplete, lost, or presumed destroyed through no fault of the claimant, VA has a heightened duty to assist in the development of the case. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In the instant case, VA treatment records document that the Veteran has a diagnosis of mild multilevel spondylosis of the lumbar spine and has undergone ongoing treatment for his lower back. The Veteran contends that the condition resulted from a March 1972 in-service injury at Luke Air Force Base in Arizona. The Veteran reported that he was assigned on a work detail moving metal discs when he injured his lower right back. He further reported that he received treatment for blood in his urine and deep muscle pain. Upon separation from service, the Veteran asserts that Air Force medical staff told him that his back would give him trouble later in life. See April 2008 Veteran’s Application for Compensation or Pension; See also December 2012 Statement in Support of Claim. The Veteran’s original claim for service connection was denied in an October 2008 rating decision, in part, because his service records were unavailable. The RO found that no relationship was shown between the Veteran’s current lumbar spine condition and his military service. The rating decision noted that the Veteran’s STRs were requested from the National Personnel Records Center (NPRC) in April 2008. The NPRC response indicated that they had previously supplied the records to the RO in October 1977. The only records supplied in response to the April 2008 records request were the Veteran’s service dental records. The RO indicated that they had not been able to locate the records that were supplied to them in October 1977, and determined that any further attempts to locate those records would be futile; however, it was also noted that if in the future the Veteran’s records became available, a subsequent rating decision would be prepared. See October 2008 Rating Decision. The Veteran was sent correspondence in April 2008 requesting evidence showing his lower right back injury and its relationship to military service. Further correspondence was sent in July 2008 and September 2008, inquiring if the Veteran had any STRs in his possession, and requesting any additional evidence or information as to the whereabouts of his service treatment records. Review of the Veteran’s service dental records gave no mention of a lower back injury, and the RO noted that they did not receive any further evidence from the Veteran in response to the letters sent to him. Id. The Veteran submitted a new claim for a lower back disability in September 2012. In the March 2013 rating decision on appeal, the RO declined to reopen the Veteran’s claim for service connection, on the basis that his lay statements and treatment records from VAMC Cincinnati, Cleveland, and Honolulu, submitted in connection with the current claim, did not constitute new and material evidence because they did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. Namely, they did not provide evidence of an in-service lower back injury or otherwise relate the Veteran’s current condition to service. See March 2013 Rating Decision. The Veteran, through his representative, contends that if his service records were to be found and accessible, they would substantiate his claim. Further, he argues that the loss of his records is through no fault of his own, and that due to VA’s inability to obtain the necessary records, he is being held accountable for such loss by the denial of his lower back condition. The Veteran’s representative asserts that given the circumstances, VA’s heightened duty to assist includes the obligation to search alternate sources for the Veteran’s medical records. See July 2016 Statement of Accredited Representative; May 2018 Appellant’s Brief. As the matter is being remanded to obtain any outstanding VA treatment records, the Board finds that the RO should make another attempt to locate the missing service treatment records, and associate them with the Veteran’s claims file. While the Board acknowledges the RO’s determination that any further attempts to locate the records would be futile, it is unclear that all efforts have been exhausted in a search for the Veteran’s records. The record shows that a Personnel Information Exchange System (PIES) request was made by the RO, and the Veteran has indicated that he contacted the NPRC and the Records Management Center. However, the April 2008 finding of unavailability did not describe what, if any, measures were taken internally to locate the Veteran’s files, which the NPRC indicated were in the RO’s possession. Additionally, as noted above, the Veteran reported that he received in-service treatment at Luke Air Force Base. It is unclear if the RO ever attempted to contact that medical center directly to obtain any treatment records pertaining to the Veteran. Accordingly, the Board is of the opinion that a more thorough search for the Veteran’s STRS is required. On remand, additional development should be undertaken to determine whether any additional service treatment records are available and, if so, to associate a copy of those records with the claims file. All attempts to locate the outstanding STRs in accordance with proper procedures must be completed and documented in narrative form, and associated with the claims file. Further, it must be ascertainable that a verifiable, reasonably exhaustive search for the STRs has been undertaken. In conducting the requested development, the RO should contact any source deemed appropriate, to include but not limited to: the National Personnel Records Center, the National Archives and Records Administration, the Defense Personnel Records Information Retrieval System, the Personnel Information Exchange System, and the Joint Services Records Research Center. However, the RO must directly contact Luke Air Force Base in Arizona to request all records in their possession pertaining to the Veteran. To the extent that those facilities indicate any other entity to which the Veteran’s records were transferred to, the RO must exercise due diligence in contacting those entities to request records pertaining to the Veteran. Accordingly, the matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. Specifically, obtain all records from the Cincinnati VAMC from 1985 onward. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must be clearly documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Arrange for exhaustive development, taking all procedurally appropriate actions, to locate the Veteran’s complete service treatment records. The search must specifically encompass the medical facility at Luke Air Force Base and any storage facility(ies) to which such records may have been retired. If any location contacted suggests other sources, those sources must be encompassed by the search. If such records are unavailable, it should be so certified for the record (along with a description of the extent of the search conducted, i.e., a record of unavailability). 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Arrange for any further development indicated by the results of the development requested above (e.g., obtain any necessary post-service VA and private treatment records; obtain a medical opinion if there is indication that the Veteran’s claimed condition began in service). If any development is incomplete, appropriate corrective action is to be implemented. 4. Thereafter, readjudicate the Veteran’s new and material evidence claim (and, if evidence is found to reopen, the underlying service connection claim). If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford an appropriate period of time for response. Thereafter, the case should be returned to the Board, if in order, for further review. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis