Citation Nr: 21004659 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 10-19 801 DATE: January 27, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before a Veterans Law Judge at a June 2013 Video Conference hearing. A copy of the hearing transcript has been associated with the record. The Veterans Law Judge that conducted the June 2013 hearing has since left the Board prior to final adjudication of the instant appeal. The Veteran was apprised of this by letter in May 2017 and elected to waive a second hearing in a June 2017 response. The Board denied the appeal in a July 2017 decision. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 Order and Joint Motion for Remand (JMR), the Court vacated the Board’s July 2017 decision and remanded the matter to the Board for further adjudication. The requested development was partially completed and the matter returned to the Board in November 2018. The Board denied the claim citing VA’s unsuccessful efforts in obtaining medical records from Jacksonville Hospital Naval Air Station. This matter was again appealed to the Court. The Veteran, through counsel, argued that the Board failed to ensure that the duty to assist was satisfied or comply with a previous remand order. In June 2020, the Court issued a Memorandum Decision setting aside the Board’s November 2018 denial and remanding the claim for readjudication. 1. Entitlement to service connection for a lumbar spine disorder is remanded. In this case, the Veteran contends he is entitled to service connection for a lumbar spine disorder. By way of history, this case was originally denied in an August 2009 rating decision. In June 2013, the Veteran testified before a now-retired Veterans Law Judge at a videoconference hearing. This matter first came before the Board in June 2014. The issue was remanded in order to obtain outstanding medical treatment records and to schedule the Veteran with a VA examination. The issue returned before the Board in July 2017 and was subsequently denied. The Veteran appealed this decision to the Court. Pursuant to an April 2018 JMR, the Court vacated the Board’s July 2017 decision and remanded the matter to the Board for further adjudication. The Court found that the Board did not fulfill its duty to assist, noting that it failed to obtain relevant medical records from various sources where the Veteran reported he was treated after his in-service car accident. The Board, in its July 2017 decision, noted that in 2009, VA attempted to obtain records from the National Personnel Records Center (NPRC) and received a negative response indicating that no service treatment records (STRs) were available. In May 2009, a negative response was received from the Records Management Center (RMC) noting his STRs were not located, inter alia. However, the Regional Office (RO) in December 2009 noted no request had been made to the Jacksonville Naval Hospital where the Veteran reported he was treated. Furthermore, in his hearing, the Veteran had testified that he received treatment from a Dr. E. After the Board’s June 2014 remand, it noted the RO submitted a Personnel Information Exchange System (PIES) request to the hospital for the 1990 and 1995 records and received negative responses. The parties noted the Board did not mention any efforts to obtain records from the “RMC” and “Dr. E.” There was also no indication in the record that any attempts were made to locate the records from the RMC after the December 2009 attempt event though the RO stated the RMC had located and promised to provide microfilm records. In the April 2018 JMR, it was agreed upon that a remand was necessary in order to clarify whether the follow-up request was made and whether any records were provided by the RMC to clarify whether any records were requested from “Dr. E.,” and to clarify why no records were found at the Jacksonville Hospital although his DD-214 indicated he was treated at the hospital when discharged from the military in July 1995. This matter then returned to the Board in November 2018. In the November 2018 decision, the Board listed VA’s unsuccessful efforts to obtain medical records from the Jacksonville Hospital. The decision stated there were multiple requests for treatment records from the hospital to include any records from “Dr. E.” that have yielded negative responses. As such, the Board concluded that all necessary development had been accomplished and that appellate review could proceed without prejudice to the Veteran. However, in a subsequent June 2020 Memorandum Decision, the Court found the Board failed to ensure substantial compliance with the April 2018 JMR. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (it is substantial compliance with remand orders, not absolute compliance, that is required). The Court noted the JMR specifically instructed the Board “to clarify why no records were found at the Jacksonville Hospital, even though the Appellant’s DD-214 showed he was treated at the hospital when he was discharged from the military in July 1995” and that this portion of the remand order was not addressed by the Board. Accordingly, in order to comply with the Court’s April 2018 JMR, the Board finds a remand is once again necessary. Upon remand, the RO should clarify whether the follow-up request was made to the “RMC” to locate and provide the microfilm records and treatment records from “Dr. E.” at the Jacksonville Hospital. The matters are REMANDED for the following actions: 1. The RO should clarify whether the follow-up request was made to the Records Management Center (RMC) to obtain the microfilm records after the RMC stated they had found and promised to provide the records or whether any records were provided by the RMC. If the event that the follow-up request was made and the records are unavailable, a detailed accounting of the efforts taken to obtain such records should be made. 2. The RO should request any medical treatment records from the Jacksonville Hospital to include any records specifically from Dr. E. If no records are again found, the RO should clarify why they were not obtained from the Jacksonville Hospital to include any records specifically from Dr. E. The Veteran’s DD-214 notes he was treated at the hospital when he was discharged in July 1995 and the Veteran testified that he was treated by Dr. E. at that time. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.