Citation Nr: 21063260 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-12 727 DATE: October 13, 2021 REMANDED New and material evidence to reopen the claim for service connection for lumbar spine, degenerative joint disease (DJD), including as secondary to the service-connected left knee disability, is remanded. Entitlement to service connection for a seizure disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1973 to April 1975. This appeal arises from a May 2014 rating decision, denying petitions to reopen previously denied service-connection claims for lumbar spine DJD and a seizure disorder, due to a lack of new and material evidence. In May 2019, the Board issued a decision finding that new and material evidence had not been received to reopen the claims for entitlement to service connection for a seizure disorder or for lumbar spine DJD, including as secondary to service-connected status post-left knee arthroplasty. The Board determined that a May 1990 rating decision was the last final denial of service connection for a seizure disorder and that an April 2012 rating decision was the last final denial of service connection for lumbar spine DJD. On appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued an April 2020 Order that vacated the Board's prior May 2019 decision and remanded the matter to the Board. The Court's Order granted the April 2020 Joint Motion for Remand (JMR). In October 2020, the Board remanded the claims to the AOJ so that outstanding VA treatment records, dated May 2020 to Present, could be obtained. In response, the RO sent one request for medical treatment records to the Nashville/Tennessee Valley HCS/Mountain Home on November 4, 2020. On December 10, 2020, the RO sent a final attempt letter to the Veteran stating that Nashville/Tennessee Valley HCS/Mountain Home had not responded to the request for treatment. On January 29, 2021, VA received correspondence from Tennessee Valley Healthcare System stating that the Veteran's chart had been transferred to Lee's Summit. In April 2021, the Board noted that VA treatment records collected during the recent remand included additional evidence regarding hospitalization and treatment of the Veteran's seizure disorder within one year of notification of the May 1990 rating decision. The Board determined that this evidence was new and material, as it relates to the Veteran's claimed seizure disorder. And as such, the prior claim did not become final and has been pending and, as a result, a discussion on reopening the seizure disorder claim based on new and material evidence was not warranted. Also, in April 2021, the Board further recognized that the AOJ did not substantially comply with the October 2020 Remand directives and the claims were again remanded. Specifically, on remand, the AOJ was again instructed to obtain any outstanding VA treatment records for the Veteran, including from Birmingham, Alabama VAMC, Tuscaloosa, Alabama VAMC, and Tennessee Valley Healthcare System (HCS) in Nashville, Tennessee from May 1990 to the Present. Following the April 2021 Remand, the AOJ requested the claimed outstanding records. In an April 2021 VA 10-7131 (Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action), it was noted that in December 2020, the Nashville VAMC responded that the "Records were transferred to Lees Summit." The VA 10-7131 further noted that this VAMC is the closest to Lee's Summit, and an April 2021 response from the Kansas City VA Medical Center (KCVA) revealed the following: "Veteran never received care at KCVA: NO RECORDS." 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. 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 is reasonably 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 consistent with 38 C.F.R. § 3.159 (e)(1). Here, the AOJ did not substantially comply with the Remand directives. In this regard, the AOJ noted that the Kansas City VA Medical Center is the closest one to Lee's Summit and that the Kansas City VAMC did not have the records. Yet, the Board is not satisfied that an exhaustive search has been conducted. Thus, in light of the duty to assist requirements of 38 C.F.R. § 3.159(c)(2) and requirement under Stegall, the RO must make additional attempts to obtain any relevant medical records regarding the Veteran's treatment at the Nashville/Tennessee Valley HCS/Mountain Home from Lee's Summit. 1. New and material evidence to reopen the claim for service connection for lumbar spine, degenerative joint disease (DJD), including as secondary to the service-connected left knee disability is remanded. 2. Entitlement to service connection for a seizure disorder is remanded. The matters are REMANDED for the following action: 1. Arrange for an exhaustive search of the Veteran's VA treatment records, specifically including those from Nashville/Tennessee Valley HCS/Mountain Home in Nashville, Tennessee, which has since been transferred to Lee's Summit, dated from May 1990 to the Present. The AOJ is further advised to search remaining VA Medical Centers in Missouri, to include Harry S. Truman Memorial; John J. Pershing VAMC; and the VA St. Louis Health Care System. Associate any obtained records with the claims file. All attempts to secure these records, and any response received, must be documented in the claims file. If no VA treatment records are available, a response to that effect is required and should be documented in the file. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.