Citation Nr: 20046714 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 14-28 602A DATE: July 13, 2020 REMANDED Entitlement to service connection for a bilateral ankle disorder is remanded. Entitlement to service connection for a disability manifested by night sweats and headaches is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 to February 1987 and March 2003 to June 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2017 hearing. This issue was previously before the Board in May 2018, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Remand is required for substantial compliance with the May 2018 remand directives, and to obtain missing service treatment records. First, remand is required to obtain compliance with the prior remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The May 2018 remand directed the RO to obtain recent VA treatment records, to provide the Veteran with VA examinations, and to obtain vocational rehabilitation records. VA treatment records were successfully added to the claims folder in March, May, and July 2019, and in January, April, and June 2020. The Veteran underwent new VA examinations in January 2020. However, the RO failed to obtain the vocational rehabilitation records. In a November 2019 letter, the RO determined that the records cannot be located and therefore are unavailable because they sent three separate requests to the Atlanta Veteran Readiness and Employment Home and never received a response. The Board finds these efforts to be insufficient, a lack of a response is not indicative of the absence of records. Accordingly, remand is required to obtain the Veteran’s vocational rehabilitation records. Second, remand is required to obtain missing service treatment 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. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Although VA sent a May 2019 letter to the Veteran informing him that the National Personnel Records Center and the VA Records Management Center have determined that there are no records available, the Board finds that options still remain to attempt to obtain his missing service treatment records. In September 2012, the Veteran submitted VA Form 21-4142 Authorization for Release of Information indicating that he received treatment during service at Winn Army Hospital in Fort Stewart, Georgia, Landstuhl Regional Medical Center in Germany, and Fort McCoy in Wisconsin. The claims folder does not show any attempts to obtain any treatment records from any of these institutions. The record is also absent any attempts to contact the Veteran’s units to request his records. Accordingly, remand is required obtain missing service treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA vocational rehabilitation folder, or a legible copy thereof, and associate it with the Veteran's claims file. If the records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be noted in the Veteran's file. The lack of a response from the vocational center is not proof of unavailability. 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 or her representative. 2. Obtain the Veteran’s service treatment records. Contact the Veteran’s unit(s), Winn Army Hospital in Fort Stewart, Georgia, Landstuhl Regional Medical Center in Germany, and Fort McCoy in Wisconsin. 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 or her representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral ankle disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral ankle disorder had onset in, or is otherwise related to, active service. The examiner is instructed to accept as true, for the limited purpose of providing this opinion, the Veteran's reports of an injury to his ankles from a fall, and fully address the lay testimony when providing an opinion. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the disability manifested by night sweats and headaches from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disability manifested by night sweats and headaches had onset in, or is otherwise related to, active service. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the hypertension from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension had onset in, or is otherwise related to, active service. The examiner is instructed to accept as true the Veteran’s reports of eating a rich diet while in Germany, and fully address the lay testimony when providing an opinion. The examiner is instructed to disregard the conclusion of the January 2020 examiner regarding the credibility of the Veteran’s report of finding his roommate dead. This stressor has been verified. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.