Citation Nr: 21062755 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-02 827 DATE: October 12, 2021 REMAND Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. A Board hearing was conducted at the RO in Atlanta, Georgia. A transcript of this hearing is contained within the electronic claims file. In an April 2021 Decision, the Board granted reopening of this claim based on the submission of new and material evidence and remanded it so that an examination and etiological opinion could be obtained. While VA complied with those remand directives, see D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998), remand nevertheless still is required. VA's duty to assist includes assisting the claimant in the procurement of relevant records in the custody of federal agencies. 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(2). This duty ends only where the records either are obtained or it is determined that such records do not exist or that further efforts to obtain them would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). If, after continued efforts to obtain federal records, VA concludes that it reasonably is certain the records do not exist or further efforts to obtain them would be futile, then it will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. That notice must contain the identity of the records that VA could not obtain; an explanation of VA's efforts; 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 notice that the claimant is ultimately responsible for providing the evidence.38 C.F.R. § 3.159(e)(1). Throughout his appeal, the Veteran persistently has maintained that, within the same year he separated from active duty (1971), the VA medical center (VAMC) in Hampton treated him for hypertension and provide him medication. See, e.g., Mar. 14, 2018, Hearing Transcript (Tr.) at 8; July 2, 2014, Correspondence. VA acknowledged the Veteran's allegations in an October 2015 Deferred Rating Decision whereby it stated to "request his 01-05-1971 to present VAMC Hampton, VA treatment reports." An April 2016 letter from VA to the Veteran indicates that it was unable to obtain the 1971 Hampton records. It listed as the action taken a "November 8, 1971," and "October 22, 2015," request, both of which yielded no response from that facility. The agency of original jurisdiction (AOJ) has failed its duty to assist for multiple reasons. First, a review of the claim's file does not disclose any internal attempts made to obtain the alleged 1971 records, so the Board cannot verify whether the AOJ actually has taken these stepsnot in November 1971 and not in October 2015. See 38 C.F.R. § 3.159(c)(2). Furthermore, the Board does not find that a VAMC's mere failure to reply to the AOJ's request for the records would permit a finding of unavailability. As the regulations make clear, cases "in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them." 38 C.F.R. § 3.159(c)(2) (emphasis added). In this instance, silence cannot be deemed as unavailability. It would be unfair to allow the AOJ to skirt its regulatory duties simply by resting on the inaction of another arm of VA. See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) ("The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim . . . ."). Thus, remand is required to secure these records or, at the very least, a response from the Hampton VAMC, concerning their availability. The matters are REMANDED for the following action: 1. Obtain all the Veteran's outstanding treatment records form the Hampton VAMC, beginning 1971 to the present. If these records either do not exist or cannot be obtained, specifically document the actions taken and responses thereto, identifying the sources contacted by producing an evidence trail. Then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed, conduct any other development deemed necessary, to include securing an addendum medical opinion to address any new records obtained, and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.