Citation Nr: 21072593 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 20-25 262 DATE: December 3, 2021 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a bladder disorder as secondary to a back disorder is remanded. Entitlement to service connection for back surgical scars as secondary to a back disorder is remanded. Entitlement to service connection for a back disorder, to include compensation under 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1959 to August 1963 with additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that the Veteran requested a hearing in his substantive appeal to the Board. See May 2020 VA Form 9. In July 2021, he received notification from VA that a Board hearing was scheduled in September 2021 and that if he missed his hearing and would like to reschedule, he must file a written motion for a new hearing date within 15 days of the originally scheduled hearing date. See July 2021 Correspondence. The Veteran did not appear for his Board hearing and, to date, has not otherwise indicated that he would like to reschedule for a new hearing. As such, his request for a hearing is considered withdrawn, and the Board will proceed accordingly. Unfortunately, the Board finds that a remand is warranted for all the Veteran's claims on appeal to fulfill VA's duty to assist because there appears to be outstanding VA, private, and military treatment records that are not associated with the Veteran's claims file. First, there appears to be outstanding VA treatment records that have not been associated with the Veteran's claims file. In this regard, in the Veteran's initial service connection claim, he indicated that he received VA treatment at the Pittsburgh VA Medical Center (VAMC) from August 1963 to present. See May 2017 VA 21-526EZ, Fully Developed Claim. However, the Veteran's claims file only contains VA treatment records from the 1980s. Additionally, while a February 2018 VA Report of General Information indicates that there are no records available at Pittsburgh VAMC prior to April 1986, this finding is inaccurate as there are VAMC records in the claims file prior to that date. See January 2020 Deferred Rating. As such, in February 2020, VA requested the outstanding treatment records, to include records uploaded into VISTA Imaging, and specifically indicated that all possible records must be provided or that a negative response is required. See VA 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action. Despite this request, the record still only contains VA treatment records from the 1980s and there is no subsequent indication nor formal finding explaining whether the other identified VA treatment records could not be located and/or do not exist. The Board notes that any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. As such, the RO should take all necessary efforts to obtain the outstanding VA treatment records, and if no such records are located, and once all avenues are exhausted, a formal finding of unavailability should be provided to the Veteran. See 38 C.F.R. § 3.159(c)(2) and (e). Moreover, as the evidence shows that the Veteran underwent cervical spine surgery at the Oakland VAMC, the Agency of Original Jurisdiction (AOJ) should also ensure that all records from that VAMC are associated with the claims file. Furthermore, an October 2017 VA record indicates that the Veteran has retired chart clinical documents scanned into VISTA Imaging. Unfortunately, the Board does not have access to this system to view the scanned documents. Thus, on remand, the RO should attempt to obtain these scanned documents, any other outstanding records uploaded into VISTA Imaging, and the Veteran's retired chart clinical documents. Second, there appears to be outstanding private treatment records pertinent to the Veteran's claims that are not associated with the claims file. In this regard, an April 1987 VA treatment record reflects that the Veteran underwent a cervical laminectomy in 1974 at St. Francis Hospital. The Veteran also reported treatment with Dr. Edward Misler in McKeesport, Pennsylvania, see October 2017 Correspondence, Dr. Chamberlain in McKeesport, Pennsylvania, see June 2012 Correspondences, and with Pittsburgh Bone and Joint Surgeons, see June 2012 Correspondences. Thus, on remand, the RO should attempt to obtain any outstanding private treatment records relevant to the Veteran's claims. Next, although the evidence of record reflects that the Veteran served in the Air Force Reserves after his discharge from active service until 1965 and the Army Reserves from July 1973 to 1975, the available service treatment records (STRs) do not reflect any medical records from his Reserve service. As such, on remand, any outstanding Reserve medical records should be obtained. Regarding the Veteran's claim for service connection for a back disorder, the Board finds that the Veteran submitted a timely Notice of Disagreement (NOD) as to this issue. Specifically, the July 2018 rating decision denied service connection for a back disorder and, in December 2018, VA received a NOD, on the proper form, where the Veteran listed, among other issues, that he was appealing back surgery scars. On the NOD, he also stated that approximate to his discharge from active duty, he had surgery at the Pittsburgh VAMC and was told by a private physician that the wrong procedure was done, which caused his current problems. As the Veteran discussed his back disorder in relation to a prior back surgery he underwent, it appears he was expressing disagreement with the AOJ's denial of service connection for a back disorder in the July 2018 rating decision. The Board is required to assist the Veteran by liberally reading all documents submitted by him. See E.F. v. Derwinski, 1 Vet. App. 324, 326 (1991); Ingram v. Nicholson, 21 Vet. App. 232, 255-56 (2007) (holding that VA's duty to sympathetically read submissions "includes a duty to apply some level of expertise in reading documents to recognize the existence of possible claims that an unsophisticated pro se claimant would not be expected to be able to articulate clearly"). Accordingly, the Board finds that the Veteran submitted a timely NOD as to this issue as he expressed disagreement concerning his claimed back disorder on the NOD form. Moreover, in his May 2020 VA Form 9, the Veteran also reported that after he underwent back surgery at the Pittsburgh VAMC, he underwent another surgery at West Penn Hospital to repair the damage to his back from the VA treatment. As the Veteran indicated in the December 2018 NOD and May 2020 VA Form 9 that his current back problems stem from VA back surgery at the Pittsburgh VAMC in 1988, the Board finds that the Veteran has raised a claim under 38 U.S.C. § 1151, which can be considered as part of this appeal as an additional theory of entitlement to service connection. Consequently, the issue has been added to the title page of this decision. In light of the above, the RO must issue a Statement of the Case (SOC) with respect to the Veteran's back disorder claim, to include compensation under 38 U.S.C. § 1151, as this is the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of an SOC. The Board emphasizes that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed if the Veteran wishes to continue his appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to perfect an appeal as to these matters. The matters are REMANDED for the following action: 1. The RO should undertake appropriate development to obtain the Veteran's Air Force Reserve and Army Reserve service treatment records. The evidence reflects that the Veteran was discharged from the Air Force Reserves in August 1965 and the Army in 1975. All efforts to obtain such records should be documented in the claims file. 2. Obtain and associate with the claims file any and all outstanding VA treatment records, to include any outstanding VA treatment records from the Pittsburgh and Oakland VAMCs. The Veteran reported that he has received treatment at the Pittsburgh VAMC from August 1963 to present. Make a notation in the claims fie of all attempts to obtain these records and all responses received. If any identified records cannot be obtained, to include Pittsburgh VAMC treatment records prior to 1984 and treatment after 1988, and further attempts would be futile, issue a formal finding of unavailability, provide a copy to the Veteran, and associate such with the claims file. 3. Obtain and associate with the claims file any outstanding scanned documents that are scanned into VISTA Imaging and/or are associated with the Veteran's retired chart clinical documents. See October 2017 VA treatment records reflecting that records are viewable in VISTA Imaging. 4. Provide the Veteran with another opportunity to identify and/or submit any outstanding private treatment records relevant to his claims, to include any ongoing and/or updated private treatment records. The evidence reflects that he underwent a cervical laminectomy in 1974 at St. Francis Hospital. The Veteran also reported treatment with Dr. Edward Misler in McKeesport, Pennsylvania, Dr. Chamberlain in McKeesport, Pennsylvania, and with Pittsburgh Bone and Joint Surgeons. After securing the necessary releases, attempt to obtain and associate any identified, outstanding treatment records with the claims file. All efforts to obtain such records should be documented in the claims file. 5. After completion of the above development, the AOJ should conduct any other development deemed necessary, to include consideration of whether any additional evidence received triggers VA's duty to assist with obtaining VA examinations and/or opinions for the claims. 6. Furnish to the Veteran and his representative an SOC with respect to the matter of entitlement to service connection for a back disorder, to include compensation under 38 U.S.C. § 1151. Afford the Veteran the appropriate opportunity to file a substantive appeal to perfect an appeal of the issues. The Veteran is reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfectedfor the particular claim. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.