Citation Nr: 21064299 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-17 606 DATE: October 19, 2021 REMANDED Entitlement to service connection for a lower back condition is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from July 1964 to July 1966, September 1975 to December 1975, and from February 1991 to April 1991. She also had honorable active duty service with the United States Air Force from August 1980 to September 1984. Additionally, the Veteran served in the Reserves, with periods of active duty for training between January 1975 and August 1980, and between March 1986 and November 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, October 2019, and June 2021, the Board remanded the issue on appeal for further development. The issue has returned to the Board for further appellate consideration. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for a lower back condition is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2018 and October 2019 remands, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain outstanding service treatment records for the Veteran's active duty service with the Air Force from August 1980 to September 1984. As discussed in the October 2019 remand, the AOJ's Personnel Information Exchange System (PIES) request submitted in May 2018 had several deficiencies. See October 2019 Board remand. As such, in October 2019, the Board remanded the matter to allow the AOJ to submit another request for the Veteran's service treatment records from August 1980 to September 1984. The Board instructed the AOJ that, "when submitting the PIES request, the Veteran's status should be identified as 'RET' and the address code should be left blank." The Board further stated, "Any efforts to secure these records MUST be documented in the records and the Veteran informed if any of these records are unable to be secured pursuant to 38C.F.R. §3.159(e)." Following the October 2019 remand, the AOJ submitted two PIES requests in November 2019 one for inpatient records for treatment at Bitburg Air Force Base from 1982 to 1984, and the other for the Veteran's entire personnel file for periods of service from August 1980 to September 1984 and from February 1991 to April 1991. In submitting the PIES request for the inpatient records, the AOJ identified the Veteran's duty status for her service from August 1980 to September 1984 as "DCH," not "RET" as instructed. Furthermore, a response to the PIES request for the inpatient records is not associated with the claims file; thus, it is unclear to the Board as to whether such records do not exist or that any further efforts to obtain them would be futile. As for the other PIES request in which the Veteran's entire personnel file for periods of service from August 1980 to September 1984 and from February 1991 to April 1991 were requested, a December 2019 response found that this request was a duplicate of the May 2018 request. Although the AOJ made an additional attempt to obtain the Veteran's outstanding service treatment records for periods of service from August 1980 to September 1984 and from February 1991 to April 1991, it is unclear to the Board as to whether such records do not exist or that any further efforts to obtain them would be futile. Furthermore, the claims file does not contain a formal determination that inpatient records for treatment at Bitburg Air Force Base from 1982 to 1984, as well as the Veteran's service records for periods of service from August 1980 to September 1984 and from February 1991 to April 1991 do not exist or that further efforts to obtain such records would be futile, or any notification to the Veteran of such a finding, as required by governing regulation. See 38 C.F.R. § 3.159(c)(2), (e). Additionally, in the October 2019 remand, the Board directed the AOJ to obtain VA treatment records from December 2017 to the present. As the AOJ did not obtain the requested records following the October 2019 remand, the Board again remanded the matter in June 2021 for the outstanding VA treatment records from December 2017. Following the June 2021 remand, the record does not reflect that the requested VA treatment records from December 2017 have been associated with the claims file. Furthermore, there is no documentation of record regarding any attempt to obtain these outstanding VA treatment records. Thus, a remand is still needed to obtain these records. Accordingly, to ensure compliance with the directives of the prior Board remands, the above outstanding records should be obtained, or documentation of the AOJ's attempts to obtain these records should be provided. See Stegall, 11 Vet. App. at 271. Thereafter, the AOJ should review the record and conduct any additionally indicated development, to include obtaining any VA examination and/or opinion, deemed necessary for the adjudication of the instant claim. The matter is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, specifically VA treatment records from December 2017 to the present. If any record identified cannot be obtained, the Veteran and her representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record herself. 2. Request the Veteran's service treatment records from her active duty service in the United States Air Force between August 1980 and September 1984. In doing so, the AOJ is reminded that, when submitting the PIES request, the Veteran's status should be identified as "RET" and the address code should be left blank. Also request service treatment records for verified periods of Reserve service. Additionally, request copies of any inpatient, clinical, or hospitalization records, to include X-rays or other diagnostic study results, for the Veteran for treatment at Bitburg Air Force Base from June 1982 through September 1984. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 3. After all outstanding records have been obtained, the AOJ should review the record and conduct any additionally indicated development, to include obtaining any VA examination and/or opinion, deemed necessary for the adjudication of the instant claim. (Continued on next page) 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.