Citation Nr: 21008234
Decision Date: 02/12/21	Archive Date: 02/12/21

DOCKET NO. 15-18 622
DATE: February 12, 2021

REMANDED

Entitlement to service connection for a back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from January 1987 to April 1987 and from December 1990 to May 1991.  

This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in July 2018 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development.  

Pursuant to the July 2018 Board remand, the AOJ sent the Veteran VA Forms 21-4142 and 21-4142a in order to develop the record and obtain private treatment records.  See Subsequent Development Letter, received May 2020.  However, this appears to be the only attempt by the AOJ to obtain the Veteran’s records.  The July 2018 remand instructed the AOJ to make as many requests a necessary to obtain the Veteran’s records until it made a formal determination that the records either do not exist or that further efforts to obtain those records would be futile.  See 38 C.F.R. § 3.159.  As a proper formal finding was not made, the issue on appeal must be remanded to ensure compliance with those orders. 

The Board sincerely regrets the additional delay occasioned by multiple remands.  However, the Board errs when it fails to ensure substantial compliance with a Board remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order).  Where the Board fails to ensure substantial compliance, remand is appropriate.  Stegall, 11 Vet. App. at 271.

The matters are REMANDED for the following action:

1. Confirm with the Veteran the name and address of the private chiropractor office that treated the Veteran, and request the records of treatment.  Make as many requests as necessary to obtain the records.  If it is determined that the records do not exist or that further attempts to obtain the records would be futile, a formal finding should be entered into the record and the Veteran should be notified and provided the opportunity to obtain and submit the evidence.  

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2. After the above is complete, conduct any additional development as needed, and readjudicate the Veteran’s claims.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental State of the Case.  An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review.

 

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Javed

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.