Citation Nr: 21031239 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-11 201 DATE: May 21, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a neck condition is remanded. FINDINGS OF FACT 1. In a March 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a back condition; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received during the appeal period. 2. Additional evidence received since the March 2010 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back condition, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied the claim for entitlement to service connection for a back condition disability is final. 38 U.S.C. §§ 7105; 38 C.F.R. § 3.104, 20.1103. 2. Evidence received since the March 2010 rating decision is new and material, and the claim for entitlement to service connection for a back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The August 2017 rating decision included the issue of entitlement to service connection for tinnitus. While the Veteran listed service connection for tinnitus as an issue of disagreement on his November 2017 NOD, he did not perfect his appeal as to this issue by filing a substantive appeal. See 02/19/2018 Form 9. As the Veteran limited his substantive appeal to the issues of entitlement to service connection for a back condition, neck condition, and sleep apnea, the issue of entitlement to service connection for tinnitus is not before the Board at this time. In January 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the claims file. 1. New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. As background, in August 2009, the Veteran filed a claim for service connection for a back condition. In a March 2010, rating decision, the RO denied the claim. Part of the rationale for the March 2010 denial was that the evidence of record, to include the service treatment records (STRs), failed to show any complaints, treatment, or diagnosis of any back-related disorder. The March 2010 rating decision became final when the Veteran did not appeal that decision and VA did not actually or constructively receive new and material evidence during the one-year period. Thereafter, in July 2017, the Veteran submitted a new claim for service connection for a back condition. 07/11/2017 VA 21-526EZ, Fully Developed Claim. Along with his claim, the Veteran submitted a Statement in Support of Claim on VA Form 21-4138, in which he contended that his current back condition resulted from two in-service back injuries. See 07/11/2017 VA 21-4138, Statement in Support of Claim. Further, updated VA treatment records were obtained in August 2017, which shows an October 2014 diagnosis of arthritis of the back, a chronic condition, and the Veteran's May 2014 lay report of having a chronic back condition with continuity of symptomatology for over 35 years. See 08/15/2017 CAPRI at 96. In an August 2017 rating decision, the RO concluded that no new and material evidence had been submitted to warrant readjudication of the Veteran's claim and continued and confirmed the March 2010 denial of service connection for a back condition. Notwithstanding the August 2017 rating decision, the issue of whether new and material evidence has been presented must be determined by the Board de novo, as the matter is a jurisdictional issue that the Board must address. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, the Board finds that the Veteran's July 2017 Statement in Support of Claim and the VA treatment records obtained in August 2017 constitute new and material evidence because they were not previously part of the record before agency adjudicators and they relate to an unestablished fact necessary to substantiate the claim; namely, evidence of an in-service incurrence and continuity of symptomatology of a chronic back condition. 38 C.F.R. § 3.156(a). Therefore, the Board finds that readjudication of the claim of service connection for a back condition is warranted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for a back condition is remanded. 3. Entitlement to service connection for a neck condition is remanded. Although the additional delay is regrettable, the Veteran's claim must be remanded for further development. In this regard, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's appeal so that he is afforded every possible consideration. 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 (Court) 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 Court 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, to include his two reported in-service back injuries and his contention that the duties associated with Boatswain's Mate and Navy Fireman resulted in sleep problems and symptoms of sleep apnea while in service. See 01/29/2021 Hearing Transcript at 12. Further, the evidence indicates that there may be outstanding relevant VA treatment records. In this regard, the Veteran testified at the January 2021 Board hearing that he received treatment for a back and neck condition while working as a civilian at Fort Benjamin Harrison in Lawrence, Indiana from 1974-1976, and that he continues to receive medical care through VA. However, the Board notes that the most recent VA treatment records associated with the claims file are dated December 2017. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (stating that VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). Accordingly, on remand the AOJ should contact the Veteran to obtain the authorizations necessary to request and obtain any outstanding VA or private treatment records. The matters are REMANDED for the following actions: 1. Take appropriate action to obtain the Veteran's complete military personnel records. To this end, submit a request (or requests) to any appropriate agency or department. Attempt to corroborate, via the Veteran's military service records, to corroborate the Veteran's two reported in-service back injuries, to include an altercation with Shore Patrol in Hawaii and injury resulting from a slipped anchor on a U.S. Navy ship. 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 condition, neck condition, or sleep apnea, to include the dates of any such treatment. Then, obtain all outstanding VA treatment records, specifically any updated VA treatment records from December 2017 to the present, and obtain the necessary authorizations for any identified private medical 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.