Citation Nr: 21014908 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-19 807 DATE: March 16, 2021 REMANDED The petition to reopen the previously denied claim of entitlement to service connection for great toe condition (right foot) is remanded. The petition to reopen the previously denied claim of entitlement to service connection for right leg condition, to include as secondary to great toe condition (right foot), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1983 to September 1983. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) RO. In August 2019, the Board denied a request to reopen the previously denied claim for service connection for right great toe condition and right leg condition, to include as secondary to right great toe condition. The Veteran subsequently appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 granted Joint Motion for Remand, the Court vacated and remanded the issues back to the Board for further development. Claims to reopen Pursuant to the October 2020 Court Order, the Board defers its determination of the new and material evidence claims pending further development. Remand is required to attempt to obtain potentially existing and outstanding service treatment records (STRs) and VA treatment records prior to October 7, 2013. In a July 2013 statement, the Veteran reported receiving treatment at the Hampton VA Medical Center (VAMC) and specified that he wears a “specially sized shoe on [his] right foot.” The Veteran also explained that he sought treatment for his right great toe and foot conditions while on active duty at the Fort Still, Oklahoma medical clinic in either 1983 or 1985. On his April 2017 VA Form 9, the Veteran indicated that there are service treatment records missing from his file. This includes the Veteran’s service in the National Guard. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Thus, the Board defers its determination of the new and material evidence claim pending further development since remand is required to attempt to obtain any outstanding STRs and VA and private treatment records. Moreover, the Board is remanding this issue prior to consideration of new and material evidence because the possibility of outstanding official service department records could warrant reconsideration under 38 C.F.R. § 3.156(c). The matters are REMANDED for the following action: 1. Attempt to obtain any additional service treatment records, specifically from 1983 to 1985. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. The RO should also follow up on any additional action suggested by each appropriate source contacted. All efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record, e.g., a formal finding of unavailability. Required notice and the opportunity to submit such reports must be provided to the Veteran and his representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, including Hampton VAMC. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. The RO should also follow up on any additional action suggested by each appropriate source contacted. All efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice and the opportunity to submit such reports must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. Any and all information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.