Citation Nr: 21002196
Decision Date: 01/13/21	Archive Date: 01/13/21

DOCKET NO. 14-23 115
DATE: January 13, 2021

REMANDED

Entitlement to service connection for a cervical spine disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1970 to March 1974.

This matter comes before the Board of Veterans’ Appeals on appeal from a September 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In June 2015, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing.  A copy of the Board hearing transcript has been associated with the Veteran’s claims file.

Most recently, the Board remanded for obtaining VA treatment records from Biloxi, MS (from 1990s), and from Pensacola, FL (from 2009/2010 to March 2016), and for the RO to provide a formal finding of unavailability and notify the Veteran in accordance with 38 C.F.R. § 3.159(e), if the records do not exist or further attempts to obtain the records would be futile. Since then, two VA 10-7131 forms were prepared - one for each facility – in May 2020 and August 2020. 

However, there was no response to the August 2020 request to Pensacola, FL.  Although the Board is cognizant of a deferred rating decision in November 2020 indicating that “the Pensacola records would be included in the negative response from Biloxi as they are housed under Biloxi”), the Board disagrees. The May 2020 request asked only for records from the 1990s; there is no way this could be reasonably read as also asking for records from 2009/2010 to March 2016. The Board finds there has been no substantial compliance with the previous Board remand. Stegall v. West, 11 Vet. App. 268 (1998).  

Also, as pointed out by the attorney, the letter sent to the Veteran in August 2020 did not contain sufficient detail about the attempts to obtain the records from Biloxi. The RO should provide that information to the Veteran.

The matter is REMANDED for the following action:

1. Obtain and associate with the claims file the Veteran’s historical VA treatment records from Pensacola, FL (from late 2000s (around 2009/2010) to March 2016. 

If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 

2. Notify the Veteran in accordance with 38 C.F.R. § 3.159(e) of the inability to obtain records from Biloxi.

3. ONLY IF the above received documentary evidence shows a material change to the Veteran’s claim, such as new information regarding the etiology of his disability or a showing of continuity of cervical spine symptomatology since service, should the Veteran be afforded an updated medical addendum opinion.

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In that situation, return the file to the examiner who provided the 2020 etiology opinion, or another examiner if he is no longer available, for an addendum opinion that considers the new evidence.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Lee

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.