Citation Nr: 21072349 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-04 980 DATE: December 2, 2021 REMANDED Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The appellant served in the Army National Guard. His service included a period of active duty for training (ACDUTRA) from July 1979 to November 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a back disability is remanded. The appellant contends that his back disability was incurred in or caused by service. Specifically, he testified at the March 2021 Board hearing that he injured his back during basic training when he fell flat on his back during a training exercise, and that he was treated for back problems at that time. He testified that instead of discharging him, they transferred him to a different company. He further testified that after basic training he went to Fort Jackson, South Carolina for cooking school, and that he complained about his back problems there, too. He also testified that even after his discharge from his period of ACDUTRA, he complained about back problems when he was in the National Guard in Newport, Delaware. The appellant first filed a claim for service connection for a back disability in September 2016. A January 2017 rating decision denied the claim, and the appellant did not initiate an appeal within the one-year period following the mailing of notice of that decision. Thereafter, he submitted an application to reopen the claim in August 2018. The Board notes that, at present, the claims file does not contain any of the appellant's service treatment records (STRs) or military personnel records (MPRs). The only piece of evidence in the claims file from the appellant's service is a copy of his DD Form 214, which confirms that his military occupational specialty (MOS) was food service specialist and that he separated from ACDUTRA at Fort Jackson, South Carolina. Review of the claims file reflects that the RO has undertaken past efforts to obtain the appellant's STRs and/or MPRs. In March 2013, the RO made a request via the Personnel Information Exchange System (PIES) but received a response that the custodian could not identify records for the appellant without his service number. The RO made a further request to the AMEDD Records Processing Center but received a response in July 2015 that no records existed for the appellant. In September 2015, the RO sent the appellant a letter notifying him that it had also contacted the National Personnel Records Center (NPRC) on two occasions but received a response that no STRs were located. Although the RO has undertaken significant efforts to obtain the appellant's service records, it is not entirely clear that all reasonable efforts have been exhausted. The record does not clearly reflect that the March 2013 PIES request was ever completed, for example, by following up and providing the appellant's service number, as was indicated was necessary. It also seems possible that inquiries to the Records Management Center (RMC) and the appellant's National Guard unit could at least potentially be productive. The Board also notes that there are missing private treatment records which are relevant to the issue on appeal. The appellant testified at his March 2021 hearing that he received treatment for his back at Temple University Hospital in Philadelphia, Pennsylvania and at Pain Management and MRI in Wilmington, Delaware. At present, the claims file contains only partial records from those facilities. On remand, efforts to obtain complete copies of records from these private facilities should be made. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). This matter is REMANDED for the following action: 1. Contact all appropriate sources to obtain a complete copy of the appellant's STRs and MPRs, to include by making requests through PIES, via the RMC, and by contacting the appellant's National Guard unit. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the appellant and his representative should be notified. 2. Ask the appellant to provide a release for relevant records of treatment from Temple Hospital University in Philadelphia, Pennsylvania and from Pain Management and MRI in Wilmington, Delaware, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and his representative should be notified. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.