Citation Nr: 21031358 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-35 496 DATE: May 21, 2021 REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for recurrent low back pain (also claimed as dorsal muscular strain and lower back strain) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1961 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned at a hearing in April 2021. A transcript of that hearing has been associated with the record. At that hearing, the Veteran testified that he first sought treatment for his chronic lower back pain immediately after separating from service in 1981. He indicated that he was treated at the VA Medical Center in La Jolla, California for the condition. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(1)(B). VA's duty to assist extends to providing assistance to obtain all "VA medical records or records of examination or treatment at non-VA facilities authorized by VA" if such records are adequately identified by a claimant in pursuit of his or her claim. Sullivan v. McDonald, 815 F.3d 786, 790 (Fed. Cir. 2016); see also Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) (duty to assist is not discharged "based on a mere belief that the likelihood of finding a record substantiating a veteran's claim is 'low' or 'extremely low'"); 38 C.F.R. § 3.159 (c)(3). Because the VA has constructive possession of Federal records, it has a duty to make reasonable efforts to assist a claimant in securing evidence which is necessary to substantiate a claim for VA benefits. 38 U.S.C. § 5103A § 38 C.F.R. § 3.159 (c). As these records are relevant to this Veteran's appeal, the Board finds that, prior to determining whether new and material evidence has been received to warrant reopening the claim, a remand is required to obtain these VA records, or to affirmatively determine that they are unavailable. See also Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1352-1353 (2003). The matters are REMANDED for the following action: Obtain all treatment records from the VA San Diego Healthcare System, to include those from the VA Medical Center La Jolla, starting in 1981, to specifically include any records regarding the Veteran's treatment for back pain. If the 1981 record from the VA Medical Center La Jolla 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 Veteran should be notified of the attempts made and why further attempts would be futile, and 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). Such development is necessary prior to consideration of whether the claim of entitlement to service connection for recurrent low back pain (also claimed as dorsal muscular strain and lower back strain) may be reopened. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.