Citation Nr: 20032555 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 15-18 287 DATE: May 8, 2020 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1978 to October 1998. This matter comes to the Board of Veterans’ Appeals (Board) on remand from a December 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2018 decision, the Board denied service connection for a lumbar spine disorder and remanded the issue of entitlement to an increased evaluation for service-connected bilateral hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2019 the parties filed a Joint Motion for Partial Remand (JMPR). In July 2019, CAVC granted the JMPR and remanded the lumbar spine disorder issue to the Board for compliance with the JMPR. Although an SSOC has been issued regarding the hearing loss claim, it is not yet before the Board and thus is not adjudicated herein. Remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). Here, in May 2019, while the CAVC appeal was pending, the RO obtained and associated with the claims file additional VA outpatient treatment records. Many of these records referenced pertinent, non-VA care, to include private care with Lecy Chiropractic through VA’s Veterans Choice Program. Additionally, a December 2018 VA record noted the presence of scanned spinal treatment records. Remand is required to attempt to obtain these outstanding, relevant private medical records, to include any records scanned in VISTA, which the Board is unable to access. Second, remand is required to obtain federal records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). Here, VA outpatient treatment records dated in February 2018 and July 2018 reference potentially relevant medical records from Ellsworth Airforce Base. These records are not associated with the claims file. Additionally, although VA received negative responses regarding post-service VA treatment in the South Dakota and Tampa, Florida VA medical systems, there are several records from those systems dated in the late 1990s, 2003, and 2005 that are mislabeled service treatment records. As it appears that there may be federal records not stored in CAPRI, but retired elsewhere in paper form, remand is required for confirmation. Finally, the RO should request a VA addendum medical opinion to consider any newly obtained medical evidence. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records, including but not limited to medical records from Lecy Chiropractic. After securing the proper authorizations where necessary, obtain all records of treatment or examination from all sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, including all outstanding non-VA treatment records that have been scanned into VA electronic medical record in systems other than CAPRI, to include VISTA. Also request paper records or any other records that are retired offsite from Sioux City and Tampa medical systems. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be 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. 3. Contact the Ellsworth Medical Group at Ellsworth Airforce Base and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be 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. 4. After any additional records are associated with the claims file, schedule a VA addendum medical opinion with an appropriate clinician to determine the etiology of the Veteran’s current lumbar spine disorder. The entire claims file must be made available to and reviewed by the examiner. An explanation for all opinions expressed must be provided. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disorder had its onset in, or is otherwise related to, active military service, to include curvature and deterioration of the Veteran’s spine due to his activities for 20 years in the Marine Corp from 1978 to 1998. The examiner must consider the Veteran’s reports of continuity of low back symptoms since active service. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.Vickers, 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.