Citation Nr: 21004822 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-14 523 DATE: January 28, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a chest disorder, to include as secondary to low back disorder, is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for left lower extremity neurological disorder, to include as secondary to a low back disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1980 to November 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. The Veteran testified before the undersigned Veterans Law Judge during a hearing in April 2019. A transcript of the hearing is associated with the claims file. In October 2020, the Board remanded these matters to attempt to obtain outstanding service medical records. 38 U.S.C. § 5103A(c). It found that “only a small portion of the Veteran’s service treatment records (STRs) have been associated with the record,” mostly relating to in-service pregnancies occurring in 1982 and 1987. The Board directed the agency of original jurisdiction (AOJ) that “if the records cannot be obtained, document all efforts to obtain them and associate such documentation with the claims file.” On remand, the AOJ associated a memorandum with the claims file. It stated that all available service medical records were uploaded to the Veteran’s electronic claims file. Regrettably, the Board concludes that VA has not substantially complied with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (2011). Applicable law holds that whenever the Secretary attempts to obtain records from a Federal department or agency, the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C. § 5103A(c)(2); Molitor v. Shulkin, 28 Vet. App. 397, 404 (2017). If VA is unable to obtain records from a Federal department or agency after making reasonable efforts to do so, VA must notify the claimant of that fact. 38 C.F.R. § 3.159(e)(1). The Veteran has contended that some of her service medical records, including treatment relating to her back, knees, and chest while stationed in Germany, remain missing. The record shows that she attempted to obtain her own complete medical file from the National Personnel Records Center (NPRC). She submitted a letter dated November 6, 2000, asking the custodian to send a complete copy of her medical records. In May 2001, the NPRC responded that the requested health record was not retired to the center, and that the records may have been loaned to the VA Regional Office. In December 2003, the Veteran submitted another request for her active service medical records to the NPRC. The custodian responded in November 2004 that the NPRC was unable to locate the requested record, and, based on their search, the NPRC “concluded that the records either do not exist, that NPRC does not have them, or that further efforts to locate them at NPRC would be futile.” The record shows that the AOJ first requested the Veteran’s service medical records in February 2004. In November 2004, the records custodian indicated that the requested records had been mailed. See VA 21-3101, November 2004. In December 2019, the AOJ requested “any and all” outstanding records and service treatment records. In October 2020, the custodian responded that all available service personnel records had been uploaded into the Veteran’s electronic claims file in the Veterans Benefits Management System (VBMS). The Veteran was not notified that VA was unable to obtain additional service medical records. Accordingly, the record is unclear as to whether there are any outstanding service medical records that have yet to be associated with the claims file. However, because the Veteran has contended that her service medical records are incomplete, which is within her competence as a lay person to observe, and because the AOJ has not notified the Veteran that it was unable to obtain any further service medical records, the Board will remand these matters for an additional attempt to acquire outstanding service records. In doing so, the Board makes no credibility findings as to the reports of outstanding service medical records, to include whether or not such records exist. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). On remand, the AOJ should undertake all necessary development to associate any outstanding service medical records with the claims file. If no further medical records are available, the AOJ must issue a formal finding of unavailability explaining (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) a notice that the claimant is ultimately responsible for providing the evidence. See 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(e)(1). These matters are REMANDED for the following actions: 1. Please request the Veteran’s active duty medical records from the appropriate entities for the period from May 1980 to November 1987, to include records from her overseas service in Germany relating to her low back, knees, chest, and lower extremity sciatica. Document all development for this directive in the claims file. 2. If it is determined that no further service medical records are available, the AOJ must issue a formal finding of unavailability explaining (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) a notice that the claimant is ultimately responsible for providing the evidence. The AOJ must provide a copy of such finding to the Veteran and her representative. 3. If, and only if, additional relevant service medical records are acquired, obtain addendum opinions from any qualified examiner addressing the nature and etiology of all lower back, bilateral knee, chest, and left lower extremity neurological disorders in light of the newly-obtained service medical records. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.