Citation Nr: 21076359 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-22 346 DATE: December 23, 2021 REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a headache condition is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right hip disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1978 to June 1978. This case comes on appeal of June 2015 and December 2015 rating decisions. The Veteran testified before the Board in a November 2019 hearing. This case was previously before the Board in March 2020. At that time, the Board remanded the issues below. The Board also remanded the issue of entitlement to service connection for bilateral hearing loss. Following the Board's remand, in September 2020, the agency of original jurisdiction (AOJ) granted the issue of entitlement to service connection for bilateral hearing loss, effective the date of the claim. As the AOJ granted the claim in full at that time, there was no controversy remaining on appeal. Accordingly, the issue is no longer before the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its March 2020 remand, the Board noted the Veteran's assertion that he had first received treatment at the Charleston VA Medical Center shortly after his separation in 1978. The earliest records from Charleston VA Medical Center in the Veteran's claims file were dated August 2001. The Veteran's testimony therefore highlighted the possible existence of VA treatment records that VA had not obtained, in violation of VA's duty to assist. Because of this, the Board remanded the claim to instruct the AOJ to attempt to obtain those records. Specifically, the Board instructed, "Take all appropriate steps to request and obtain all available VA treatment records from VA medical facilities in Charleston, South Carolina dated from 1978 to 2001. If such records are unavailable, or do not exist, this should be made clear. All efforts to obtain such records should be documented." Following the Board's remand, the record shows that, in April 2020, the AOJ requested outstanding records from the Charleston VA Medical Center. Later in April 2020, medical records were uploaded to the Veteran's claims file with a fax cover sheet from the Ralph H. Johnson VA Medical Center in Charleston, South Carolina. However, these documents primarily contained records from the Georgetown Memorial Hospital in South Carolinaa non-VA medical center. The documents also included a dozen or so pages of VA records beginning in August 2001a small percentage of the VA records that were already on file. After receiving these records, the AOJ sent the Veteran a "Request for Application" letter. The purpose of this letter was to let the Veteran know that the AOJ had received his medical records and to inform him that he should submit a claim form if he wished to file a claim. Thus, it is unclear from this sequence of events whether the medical records faxed in April 2020 were faxed by the Charleston VA Medical Center or if they were faxed by the Veteran. In any event, there is no indication that the Charleston VA Medical Center completed a search for any of the Veteran's records from 1978 to 2001. To the extent that the April 2020 fax was an attempt by Charleston VA Medical Center to show that there were no VA records available prior to August 2001, this was not made clear, as evidenced by the fact that the AOJ appeared to believe the records were sent by the Veteran. Accordingly, there has not been compliance with the Board's March 2020 remand instruction discussed above. On remand, the AOJ should once again attempt to obtain any outstanding VA medical records from any VA medical facility in Charleston, South Carolina from 1978 to 2001. If any such records are unavailable, this should be made explicitly clear to the Veteran and documented in the claims file. The matters are REMANDED for the following action: 1. Take all appropriate steps to request and obtain all available VA treatment records from VA medical facilities in Charleston, South Carolina dated from 1978 to 2001. If such records are unavailable, or do not exist, a negative response is required and this should be made clear. All efforts to obtain such records should be documented. 2. Once the above development has been achieved, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.