Citation Nr: 20046567 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-03 543 DATE: July 13, 2020 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the U.S. Army from June 1979 to February 1987. The Veteran received a general discharge under honorable conditions. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Regional Office (RO). In August 2018, the Board remanded this claim for additional development. Entitlement to service connection for a back disability is remanded. VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2019); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2019). VA’s duty to assist the Veteran in the development of the claim includes assisting the Veteran in procuring service treatment records, military personnel records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). A review of the claims file shows that the RO did not obtain the Veteran’s complete military personnel records, service treatment records. Additionally, it appears that documentation of a prior compensation claim filed by the Veteran immediately after separation is missing from the claims file. In October 2012, the RO formally determined that the Veteran’s service treatment records were unavailable. This determination was made after a PIES inquiry returned information that the Veteran’s service treatment records had been previously mailed to the RO in Louisville when the Veteran filed a prior claim for compensation when he separated from service in the 1980s. The file does not document any requests to Louisville for those service treatment records. Service records indicate that the Veteran received treatment from military providers in Germany prior to being medevacked to Fort Knox, where he was treated by a series of doctors. Additionally, on or about February 1987, a medical board determined that the Veteran should be separated from the service with 10 percent medical disability. Moreover, service treatment records show that the Veteran received treatment for back pain described as “chronic” in his medical records as early as August 1986. Similarly, the Veteran’s complete military personnel records have not been obtained. Documents in the claim file reference a court martial and request for separation proceedings that included a medical board’s recommendation that the Veteran be discharged with a 10 percent disability rating. Additionally, the Veteran contends that he previously filed for (and was granted) compensation when he separated from the Army. The PIES query response indicates that the Veteran did file a claim for compensation at separation, causing his service treatment records to be sent to Louisville. However, these records are not in the claims file. Further, the Veteran contends that he was receiving Social Security benefits as recently as November 2012; however, the only SSA records in the file are a denial dated July 2012, and incomplete treatment records. Based on the Veteran’s assertions, an additional request for SSA records should be made. Finally, the August 2018 Board remand directed efforts to obtain records from private medical providers including St. Joseph Hospital in Savannah, Georgia. The RO obtained treatment records from several private treatment providers, and contacted St. Joseph’s Hospital, who refused to waive payment of a fee to retrieve the records. The Veteran was not properly notified of this inability to secure the records or the opportunity to supply the records himself, and so it cannot be said that the remand directives have been fulfilled. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 106 (2008). The matters are REMANDED for the following action: 1. Contact the Veteran and inform him that records from St. Joseph Hospital in Savannah, Georgia, could not be obtained due to the required payment of a fee. Inform him he may secure and submit those records himself. 2. Obtain compelte updated treatment records from VA medical facilities. 3. Obtain up-to-date records from the Social Security Administration, including any determinations subsequent to July 2012 and a complete copy of all medical records in their possession. 4. Obtain a complete copy of the Veteran’s military personnel and service treatment files. The RO should put in a request to the RMC, National Personnel Records Center (NPRC) (or any other potential custodian), and contact the RO in Louisville for all service personnel and service treatment records, as well as copies of any claims file maintained or intiated by that office. 5. Contact NPRC to request clinical records from the Fort Knox Army Hospital for January 1986 through March 1987. This request may need to be split into smaller periods to comply with inquiry requirements. 6. Obtain clinical records from the German base clinic or hospital from which the Veteran was medevacked in January 1986. The RO should contact the Veteran to obtain more information about where he was stationed in Germany. 7. Associate documentation regarding a claim that the Veteran filed immediately after separation with this claims file. 8. Then, schedule the Veteran for a VA back examination to determine the etiology of any lower back disabilities. The examiner should review the claims file and note that review in the examination report. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any lower back disability is related to service, or any event in service. The examiner is directed to discuss the significance of the in-service treatment records for low back pain. A comprehensive rationale is required for all opinions. 9. Following the above development, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case and return the issue to the Board following the appropriate period for response if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.