Citation Nr: 21010895 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-44 894 DATE: February 26, 2021 REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a bilateral shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to March 1971, with additional service in the Reserve and National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As the August 2016 rating decision reopened the shoulders issue, the Board sees this as a favorable finding and will only address the merits. 38 C.F.R. § 3.104(c). This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). 1. Service connection for a back condition is remanded. 2. Service connection for a bilateral shoulder condition is remanded. The Veteran seeks service connection for a back condition and service connection for a bilateral shoulder condition and asserts that both conditions had their onset in service. Specifically, the Veteran contends that while flying a combat mission in November 1970, his helicopter was forced to make a hard landing, resulting in injury to his back and shoulders. See 03/10/2016 VA 21-526EZ, Fully Developed Claim (Compensation). A remand is required to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. In this regard, the Board finds that remand is warranted to allow the Agency of Original Jurisdiction (AOJ) to attempt to obtain and associate with the claims file outstanding military service records and outstanding treatment records. VA has a duty to search for records that would assist a Veteran in the development of his claim, and for which the Veteran has provided the Secretary information sufficient to locate such records, to include making as many requests as are necessary and ending only when such a search would become "futile." In Gagne v. McDonald, the Court of Appeals for Veterans Claims (CAVC) defined futile, under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159, as "a search where it is apparent that the sought-after records are either not in existence or not in the possession of the record's custodian." 27 Vet. App. 397, 403 (2015). The CAVC held that "the duty to assist required VA to submit multiple 60-day record searches" to the Joint Services Records Research Center (JSRRC) and that "the 13-month period in [that] case" was not "unreasonably long" where the appellant provided information regarding his in-service stressor. Id. at 404. In this case, the Board finds that VA has not fulfilled its duty to assist the Veteran. At the outset, the Board notes that the evidence of record does not include the Veteran's military personnel records. These records are relevant, as they should provide a detailed picture of the dates and places of the Veteran's service. Further, the evidence of record includes a single 104-page set of service treatment records (STRs). 09/20/2014 STR – Medical. However, in August 2016, the Veteran reported that relevant STRs from January 1971 to March 1971 were lost in combat in the Republic of Vietnam. See 09/03/2016 Correspondence. The Board observes the Veteran’s STRs are silent for the period reported by the Veteran. In addition, the Veteran has reported a specific location for the in-service event – Phuc Ven province, city of Song Ba, Fire Support Base Button, 2nd Brigade Headquarters and Headquarters Company (flight platoon), 1st Cav. Division III Corp., Republic of Vietnam. See id. Finally, in September 2018, the Veteran reported receiving private medical treatment and a diagnosis of spinal stenosis from a physician in North Carolina. See 09/18/2018 Form 9. Although the Veteran was subsequent afforded an opportunity to submit a release authorization for these private treatment records, he never returned the VA Form 21-4142a sent by VA in September 2019. See 09/30/2019 Subsequent Development Letter. On remand, the AOJ is to contact the Veteran to submit another release for medical provider information, including but not limited to the North Carolina private physician who gave a diagnosis of spinal stenosis. These matters are REMANDED for the following actions: 1. Take appropriate action to obtain the Veteran’s complete military personnel records. To this end, the AOJ should submit a request to the Defense Personnel Information Retrieval System (DPRIS), Joint Records Research Center (JSRRC) [now the VBA Records Research Center (RRC)], or any other appropriate agency or department, for a search of the Veteran’s military service records and to verify his reports of a hard helicopter landing suffered during a November 1970 combat mission in the Republic of Vietnam, and any records from January 1971 to March 1971. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R.§3.159(c)(2). Notify the Veteran if the records cannot be located. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for a back or bilateral shoulder condition, to include the dates of any such treatment. In this regard, provide the Veteran the opportunity to complete and return VA Forms 21-4142 and 21-4142a and inform him that he must complete and return both forms to VA in their entirety to allow VA to attempt to obtain the private records. Also, inform the Veteran to submit to VA any relevant records he may have in his possession. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R.§3.159(c)(2). Notify the Veteran if the records cannot be located. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.