Citation Nr: 21026355 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 20-01 386 DATE: April 30, 2021 REMANDED Entitlement to service connection for low back condition is remanded. Entitlement to a compensable rating for erectile dysfunction is remanded. REASONS FOR REMAND The appellant served on active duty from June 1953 to June 1955 in the U.S. Army and from September 1955 to April 1958 in the U.S. Air Force. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2018 rating decision, which, inter alia, denied service connection for a low back condition and a compensable rating for erectile dysfunction. The appellant filed a timely Notice of Disagreement (NOD), received in April 2019. A Statement of the Case (SOC) was issued in October 2019. A timely substantive appeal was received in December 2019. In September 2020, the Board remanded this matter for additional development. 1. Entitlement to service connection for low back condition is remanded. 2. Entitlement to a compensable rating for erectile dysfunction is remanded. As indicated above, in September 2020, the Board remanded this matter for additional development, specifically to attempt to obtain outstanding private treatment records from treatment providers the Veteran identified in the December 2019 VA Form 21-4142a and the July 2020 VA Form 21-4142a. In the December 2019 VA Form 21-4142a, the Veteran indicated that he received private medical treatment from Dr. J.R. In the July 2020 VA Form 21-4142a, the Veteran reported that he received private medical treatment from Centro Fisiatico del Plata, Healthcare Ambulatory Services, and Hospital Menonita. Pursuant to the September 2020 Board Remand, the RO attempted to obtain medical records from Centro Fisiatico del Plata, Healthcare Ambulatory Services, and Hospital Menonita in October 2020 and November 2020. In a February 2021 letter, the RO notified the Veteran and his attorney that records from Healthcare Ambulatory Services and Hospital Menonita could not be located, and therefore were unavailable for review. The RO determined that further attempts to obtain the records would be futile. The RO did not make such a determination with regard to Centro Fisiatico del Plata, despite making two attempts to contact the clinic. In December 2020, the RO sent a letter to the Veteran requesting information and authorization forms as to his private medical treatment. A review of the claims file does not indicate that the Veteran submitted a subsequent VA Form 21-4142 (Authorization and Consent to Release Information to the VA) in response. The Board observes that although the Veteran indicated that he received treatment from Dr. J.R. in the December 2019 VA Form 21-4142a, the RO has made no attempts to obtain any private treatment records from Dr. J.R. Moreover, the RO has not notified the Veteran and his attorney whether requested records from Centro Fisiatico del Plata are not available, or whether the search for any such records would otherwise yield negative results. Thus, the Board finds there has not been substantial compliance with the September 2020 remand instructions and remand is again required to attempt to obtain records from Dr. J.R. and to notify the Veteran and his attorney whether further attempts to obtain records from Centro Fisiatico del Plata would be futile, and allow the Veteran and his attorney the opportunity to provide such records. The matters are REMANDED for the following action: 1. The AOJ must attempt to obtain the Veteran’s private treatment records from Dr. J.R., as identified in his December 2019 VA Form 21-4142a. Make at least two attempts to obtain records from Dr. J.R. 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. Additionally, the Veteran and his attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records 2. As the AOJ has made at least two attempts to obtain records from Centro Fisiatico del Plata, if the 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. Additionally, the Veteran and his attorney must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.N., 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.