Citation Nr: 21024419 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-00 801 DATE: April 22, 2021 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1968 to February 1970. He died in August 2010; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2011 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The appellant and her children testified at a February 2017 before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. The Board previously remanded the claim to the AOJ in July 2017 and December 2019. 1. Entitlement to service connection for the Veteran’s cause of death is remanded. With respect to the issue of service connection for the Veteran’s cause of death, the Board recognizes the length of time this appeal has been ongoing and regrets the additional delay. However, another remand is required to ensure compliance with the Board’s previous remand instructions. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board noted in the December 2019 remand that the Veteran had reported treatment at VAMC Huntington going back to 1974, as well as the Charleston Area Medical Center (CAMC). Of particular interest were CAMC records relating to a spontaneously collapsed lung the Veteran suffered shortly after discharge. The AOJ had previously attached VAMC Huntington medical records from March 2006 to March 2007 but the information request did not extend to 1974. The December 2019 Board remand instructed the AOJ to attempt to retrieve these records, and if a negative response was received, to ensure that they had not been transferred to another federal facility. The VA has a duty to assist the Veteran in obtaining records in the custody of a federal agency until the records are obtained, are shown not to exist, or that a further search becomes futile. See, e.g.,38 C.F.R. § 3.159(c)(2). As noted by the Board in the prior remand, VA treatment records dating back to 1974 will be in paper format and might have been transferred to another facility. See VHA Records Control Schedule 10-1 at XLIII-3. The record reveals that in December 2020 the AOJ asked VAMC Huntington for any records relating to the Veteran beginning in 1974, or alternatively, the location of any archived paper records. An employee of VAMC Huntington responded the same day, stating “a thorough search of our systems of records has revealed that we have no records which are responsive to your request.” This response is not sufficiently responsive as this request was broad enough to cover VAMC Huntington treatment records in beginning in 2006 and 2007 which have been associated with the claims folder. The Board finds that VA’s duty to assist the appellant in obtaining VA clinic records has not been satisfied, as there was no followup communication with VAMC Huntington to attempt to determine whether the Veteran’s treatment records had been transferred to another federal facility. Additionally, the AOJ should, with the aid of the appellant, attempt to retrieve CAMC records for treatment of a collapsed lung shorty after separation from service. The appellant indicated in April 2020 correspondence that she was having difficulty with this task due to Covid-19. The matters are REMANDED for the following action: 1. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities, and specifically request all hardcopy and electronic records. The AOJ should directly contact the Huntington VAMC and confirm the earliest date of the Veteran’s treatment at their facility including a specific acknowledgment whether any paper treatment records extend back to an earlier time such as 1974 including whether any older records may have been transferred to another federal facility. See VHA Records Control Schedule 10-1 at XLIII-3 (stating that VA treatment records are deemed inactive three years after the last episode of care, at which time they are retired to a selected records storage facility for 72 years). All records and/or responses received should be associated with the claims file. 2. Contact the appellant and, with her aid, identify and retrieve any outstanding relevant private treatment records, to include those from Charleston Area Medical Center pertaining to the Veteran’s treatment for a collapsed lung shortly after his separation from service. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.