Citation Nr: 21061967 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-22 068 DATE: October 6, 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 The Veteran served on active duty from September 1970 to April 1972, and from February 2003 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded this matter for more development. In January 2021, the Board remanded this matter for more development. As the Agency of Original Jurisdiction (AOJ) did not substantially comply with the remand, another remand regrettably is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a disability claimed as "arthritis" is remanded. 2. Entitlement to service connection for a disability claimed as "muscle neuropathy" is remanded. 3. Entitlement to service connection for a back disability is remanded. 4. Entitlement to service connection for carpal tunnel syndrome is remanded. 5. Entitlement to service connection for an acquired psychiatric disability is remanded. In an April 2016 letter, the Veteran stated that he received treatment at a VA medical facility between 1972 and the present. The Board noted 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. In April 2021, there is a note that there was a negative reply for paper files for the Veteran's records requested from April 1972 to 2000. In June 2021, the Veteran submitted a letter indicating that he tried to copy some of the files but is having difficulty downloading the entire file on his computer. The Veteran stated that he submitted the pages where he accessed the Office of Veteran Affairs in his "health vet". Thus, it appears that the Veteran's VA treatment records are stored electronically, and that VA should have some way to access these records and associate them with the Veteran's case file. 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 or January 2021 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. 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." The Board notes that the Veteran was given the opportunity to respond to this request previously but failed to respond. However, as this matter must be remanded to acquire the missing VA medical records, the Board affords the Veteran an additional opportunity to assist in the development of his claims. This includes giving the Veteran the opportunity to identify any private treatment providers. The Veteran is advised that the VA's duty to assist a claimant is not a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he may have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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 matter is 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. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Obtain the Veteran's VA treatment records for the period from 1972 to 2000 from both paper and electronic sources. 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. (Continued on the next page) 4. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.