Citation Nr: 21070530 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-28 871 DATE: November 24, 2021 REMANDED Entitlement to service connection for disabilities of the neck, back, shoulder, leg, foot, to include as due to cold injury, claimed as arthritis, is remanded. Entitlement to service connection for a sinus disability, to include headaches, is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1951 to October 1952. He additionally served in the Pennsylvania National Guard from March 1949 to April 1951. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In April 2021, the Board reopened and remanded the claims for service connection for residuals of frostbite, a back condition, a foot condition, a leg condition, sinus condition disorder, to include headaches, and hypertension. The case has been returned to the Board for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to service connection for disabilities of the neck, back, shoulder, leg, and foot is remanded. 2. Entitlement to service connection for a sinus disability, to include headaches, is remanded 3. Entitlement to service connection for hypertension is remanded. Issues 1-3. The Veteran contends that his hypertension, sinus condition, including headaches, and arthritis of the neck, back, shoulder, leg and foot, are related to service. Specifically, he asserts that these conditions are the result of cold weather exposure during his service in Korea. See VA Form 21-4138 (September 2014) & Hearing Transcript (January 2021). The Veteran's representative argues that: service connection for sinus disorder is warranted based on the Veteran's reports of onset in service and continuity of symptomatology when considered with the Veteran's wife's written statements; service connection is warranted for cold injury based on the Veteran's exposure to severe cold temperatures in Korea as well as Fort Indiantown Gap, noting web-based articles discussing occurrence/prevalence of arthritis in the veteran community; and that hypertension is "a predictable result of a sedentary lifestyle." See Appellate Brief (November 2021). To ensure that VA has met its duty to assist, the claim must be remanded again for additional development that complies with its prior remand directives. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the claims to obtain, in pertinent part, VA examinations and outstanding VA treatment records. The Board finds that there has not been substantial compliance with its prior remand instructions. First, remand is necessary to obtain outstanding VA treatment records. The Board's remand directed that the RO request treatment records from the VA Medical Center (VAMC) in Wilkes-Barre for the period from October 1952 to the present. However, the only records obtained on remand are Wilkes-Barre treatment records from September 1999 to May 2021. The Veteran asserts that he was treated for all his claimed conditions at the Wilkes-Barre VAMC shortly after service discharge in 1952. The claims file contains some Wilkes-Barre VA treatment records for the period from November 1952 to January 1953. Although in February 2018, the RO requested VA treatment records from the Wilkes-Barre VAMC for the period from October 1952 onward, and received treatment records dated from 1991 to the present, there was no negative response provided regarding a search for VA treatment records prior to 1991. Because the Veteran's service treatment records (STRs) are fire related, VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Here, after the Board remanded the claims, it does not appear that the RO made any attempt to obtain the Veteran's treatment records from the Wilkes-Barre VAMC for the period from October 1952 to at least 1991. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Second, the negative August 2021 medical opinions obtained on remand were partly predicated on the absence of evidence showing diagnosis or treatment of the claimed conditions in STRs or within one year of service separation. In the event additional VA treatment records are obtained as a result of this remand, an addendum opinion considering those additional VA treatment records is required. In view of the above, the Board has a duty to ensure compliance with the terms of its remand. As such, remand is again required. Stegall, 11 Vet. App. 268. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete VA treatment records, to include those from the Wilkes-Barre VA Medical Center for the period from October 1952 to the Present. If the requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file and the Veteran notified of the negative outcome (affording him an opportunity to provide copies of any records in his possession). 2. ONLY IF ADDITIONAL VA TREATMENT RECORDS ARE ADDED TO THE FILE, OF OTHER RELEVANT RECORDS, THEN the August 2021 VA medical opinions with respect to hypertension, sinusitis, to include headaches, and disabilities of the neck, back, shoulder, leg, and foot, to include as due to cold injury residuals, should be returned to the examiner, or another qualified clinician if unavailable, for an addendum opinion. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.