Citation Nr: 21040409 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-41 798 DATE: July 3, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from April 1976 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge in a September 2019 hearing, and a transcript of this hearing is associated with the claims file. This hearing was before a judge who is no longer available to participate in the appeal. Although given the opportunity to request another hearing by VA written correspondence in November 2020, the Veteran declined to do so by not responding to the letter within the 30-day response period. This matter was previously before the Board in November 2019, at which time the Board remanded the claim and instructed the Agency of Original Jurisdiction (AOJ) to obtain any decision from the Social Security Administration (SSA) granting or denying the Veteran's disability benefits, along with all the medical records with any decision, to include all documentation associated with a 1982 application for benefits. Additionally, the AOJ was instructed to send the Veteran a VA Form 21-4142, General Release for Medical Provider Information, to request any and all relevant private treatment records, including treatment for his back in 1982. In December 2019, the AOJ sent the Veteran a letter informing the Veteran on how to submit any private medical records, as well as provided a VA Form 21-4142. The Veteran did not provide any additional private medical records, nor did he return the VA Form 21-4142. The AOJ also obtained a new VA examination for the Veteran in January 2020. Thus, the Board finds the AOJ substantially complied with its instructions with respect to these issues. As for obtaining the Veteran's SSA records, the Board finds the AOJ did not substantially comply with its remand instructions. The AOJ sent a request to the SSA for the Veteran's medical records in December 2019 and received these records in December 2019. However, while the SSA sent records concerning the Veteran's 2016 application and later grant of benefits, there was no information on the Veteran's 1982 application for benefits. In his September 2019 hearing testimony, the Veteran stated that he both sought treatment for his back pain in 1982 as well as filed for SSA benefits related to his back pain that same year. However, he was denied benefits and told to retrain into another career. While it is unclear from the AOJ's request to SSA whether the Veteran's 1982 records were specifically requested, neither the SSA nor the AOJ addressed these records in any correspondence, indicating that they were likely not requested at all instead of the records being missing or destroyed. As such, the AOJ failed to fully comply with the Board's instructions to obtain all of the Veteran's SSA records. A remand by the Board confers on the claimant a legal right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. Additionally, because the Veteran's 1982 SSA records were not associated with the claims file, these records were not available to the January 2020 examiner for review. If these records do exist, the January 2020 examiner's opinion is potentially based on an inaccurate factual premise. An opinion based on an inaccurate factual premise is considered inadequate. See Reonal v. Brown, 5 Vet. App. 458. 461 (1993). As such, the Board finds that a remand is necessary in order for the AOJ to properly comply with its November 2019 remand instructions to obtain both the outstanding 1982 SSA records as well as an adequate examination. Accordingly, this matter is REMANDED for the following action: 1. Contact the Social Security Administration and request the agency to provide a copy of any decision granting or denying the Veteran disability benefits, as well as all medical records associated with said decision, related to the Veteran's 1982 application for disability benefits. The Agency of Original Jurisdiction is to follow the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. If VA cannot locate all Federal records requested herein, it must specifically document the attempts that were made to locate them and explain, in writing, why further attempts to locate or obtain any government records would be futile. The VA must then notify the Veteran that the specific records could not be obtained, explain the efforts VA made to obtain these records, and describe any further action it will take with respect to the claim. The Veteran must be given the opportunity to respond. 2. If the Veteran's 1982 Social Security Administration records are obtained, the Agency of Original Jurisdiction is to obtain an addendum opinion from the January 2020 examiner, or other qualified examiner if the January 2020 examiner is unavailable, addressing these newly obtained records. The examiner is then asked to opine on whether or not the Veteran's current back condition is at least as likely as not (a 50 percent probability or greater) due to or otherwise related to his service. A complete rationale for all opinions must be provided. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.