Citation Nr: 21001150 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-22 068 DATE: January 7, 2021 REMANDED Entitlement to service connection for a disability claimed as “arthritis” is remanded. Entitlement to service connection for a disability claimed as “muscle neuropathy” is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for carpal tunnel syndrome is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND Entitlement to service connection for disabilities claimed as “arthritis” and “muscle neuropathy”; a back disability; carpal tunnel syndrome; and an acquired psychiatric disability are remanded. The Veteran served on active duty from September 1970 to April 1972, and from February 2003 to August 2003.This matter originates from an appeal of a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This matter returns to the Board of Veterans’ Appeals (Board) following a July 2018 remand. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has not been substantial compliance with its July 2018 remand directives. In an April 2016 letter, the Veteran stated that he had received treatment at a VA medical facility between 1972 and the present. The Board determined that the VA treatment records then of record did not pre-date the year 2000, “implying that there are potentially many years of VA treatment records missing from the claims file.” As any VA treatment records are within VA’s constructive possession, and were considered potentially relevant to the issues on appeal the Board remanded the Veteran’s claims to, in pertinent part, obtain all VA treatment records for the period from 1972 to 2000. In March 2019 the Veteran submitted medical records that he obtained from the San Juan VAMC at his own request, that included progress notes dated to April 1990, October 1990, April 1991, August 1991, and October 1991. The record reflects that the RO made only a single request, in March 2019, for VA treatment records for the period from 1972 to 2000. In April 2019 the RO received a response consisting of 5 pages of medical records dated to 1973, 1977, and 1979, along with the statement that: “A negative reply responds for other dates range requested.” The record does not reflect any additional attempts to obtain the Veteran’s missing VA treatment records, and the RO issued a Supplemental Statement of the Case (SSOC) in August 2020 confirming its previous denial of the Veteran’s claims. The Board finds that the efforts made by the RO to obtain the missing VA treatment records were inadequate, and thus not in substantial compliance with the Board’s July 2018 remand directives. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Id. By the time the RO received the 5 pages of medical records from the 1970s along with the statement that no other records could be located, the Veteran had already submitted VA treatment records from 1990 and 1991. The existence and receipt of records from 1990 and 1991 directly contradicts the April 2019 contention that no records other than 5 pages from the 1970s can be located. Moreover, from the text of the April 2019 records request response, it is unclear whether any attempt to locate VA treatment records was made besides a single inquiry to a specific records location/retrieval system. In light of the foregoing, the Board concludes that it has not been established that additional attempts to locate VA treatment records from the period from 1972 to 2000 would be futile. In the absence of said records, or alternatively, in the absence of a well-supported determination that the records do not exist or cannot be obtained, it would be premature for the Board to adjudicate or direct additional development of the Veteran’s claims. Therefore, a remand is required in order for the RO to make appropriate efforts to locate and obtain the Veteran’s VA treatment records for the period from 1972 to 2000. Additionally, the Board notes that the Veteran’s June 2011 claim for service connection identified two of his claimed disabilities as “arthritis” and “muscle neuropathy.” On remand, the RO should seek clarification from the Veteran as to the nature and scope of the Veteran’s arthritis and neuropathy claims, to include his contentions as to the area or areas of his body affected. The matters are REMANDED for the following action: 1. Seek clarification from the Veteran as to the nature and scope of the Veteran’s arthritis and neuropathy claims, to include his contentions as to the area or areas of his body affected. 2. Obtain the Veteran’s VA treatment records for the period from 1972 to 2000. The RO should document all attempts to obtain the Veteran’s VA treatment records for the period from 1972 to 2000. If the RO determines that the records cannot be located, a memorandum detailing all attempts to obtain said records should be entered into the file. If the RO determines that those records cannot be located, notify the Veteran and his representative of the nonavailability of those records and allow adequate time for the Veteran to provide any relevant records. The RO should order any further development required by the addition of those records if and when they are obtained. 3. Following the completion of Remand Directives 1-2 the RO should readjudicate the issues on appeal. If the benefits sought remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.