Citation Nr: 21014641 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-10 128 DATE: March 15, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to January 1971. He served in Vietnam, and was the recipient of the Combat Infantryman Badge. He passed away in March 2005, and the Appellant is his surviving spouse. This appeal was previously before the Board in October 2020, at which time the issues were remanded to the agency of original jurisdiction (AOJ) for further development. Of particular note, the Board observed that amongst VA treatment records from the Northern Arizona Health Care System was a March 2003 VA Mental Health Consultation which noted that the Veteran was referred to the Vet Center for evaluation, treatment, and/or treatment recommendations regarding posttraumatic stress disorder (PTSD). However, the Board noted that there were no Vet Center records associated with the claims file. Thus, the Board directed the AOJ to take all appropriate to obtain the Veteran’s Vet Center records. Thereafter, in October 2020, the AOJ sent the Appellant a letter requesting that she provide the Veteran’s records of care from the Vet Center dated between January 2003 and March 2005, or that she complete and return the necessary authorizations to allow it to obtain the records. In the letter, the AOJ noted that Vet Center records were not held within the same system as VA Medical Center records, and that it did not have access to them unless the Appellant provided the necessary authorization. The following month, the Appellant submitted a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and a VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), wherein she indicated that the Veteran received treatment at “VA Hospital.” The AOJ then submitted a request to the Private Medical Records Retrieval Center (PMRRC); however, the request was denied in November 2020, with the PMRRC noting that the provider listed was non-private. No further attempts to obtain any Vet Center records was made. In the January 2021 and February 2021 supplemental statements of the case (SSOC), the AOJ indicated that “all records from the VA Medical Center to include the Vets Center are of record.” Unfortunately, the Board finds that a remand is once again necessary as the AOJ had failed to fulfill its duty to assist in obtaining the Veteran’s Vet Center records. Significantly, the United States Court of Appeals for Veterans Claims has indicated that Vet Center records are essentially VA records. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, requesting the records through the PMRRC was inappropriate because, as noted by the PMRRC, the provider listed was non-private. Furthermore, if the Appellant’s November 2020 VA Form 21-4142a was somehow deficient to obtain the Vet Center records, or if the records were somehow unavailable, the AOJ did not give the Appellant the opportunity to submit an updated VA Form 21-4142a or inform her that the records were otherwise unavailable. See 38 C.F.R. § 3.159(e) (2020). To the contrary, in fact, the AOJ indicated in the January 2021 and February 2021 SSOCs that the Vet Center records were actually of record as part of the Veteran’s VA Medical Center (VAMC) records. This notation is also inaccurate because, as noted by the AOJ in its October 2020 letter, Vet Center records are not held within the same system as VAMC records and they would not be a part of the Veteran’s VAMC records. As such, the Board finds that VA’s duty to assist has not been fulfilled, and further development is once again necessary. As noted in the November 2018 and October 2020 remands, the Board will defer adjudication of the Appellant’s compensation claim under the provisions of 38 U.S.C. § 1151 at this time, as the development ordered above may result in additional evidence that can have a bearing on the outcome of the claim. The matters are REMANDED for the following action: 1. Take all appropriate steps to obtain the Veteran’s records of care from the Vet Center between 2003 and 2005. See March 21, 2003 VA Mental Health Consultation (noting that the Veteran was referred to the Vet Center for evaluation, treatment, and/or treatment recommendations regarding posttraumatic stress disorder (PTSD)). If authorizations are needed from the Appellant to request such records, such should be requested. 2. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file. The Appellant must be notified of the attempts made and why further attempts would be futile, and she must be allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. If, and only if, Vet Center records are obtained and associated with the claims file, request an addendum opinion from the psychologist who provided the November 2020 medical opinion. In particular, the psychologist is asked to address whether the information in the Vet Center records obtained alters the conclusions reached in the November 2020 opinion. A complete rationale must be provided for all opinions, and must be based on consideration of all pertinent lay and medical evidence. 4. Thereafter, and after any further development deemed necessary, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.