Citation Nr: 22010487
Decision Date: 02/23/22	Archive Date: 02/23/22

DOCKET NO. 17-00 758
DATE: February 23, 2022

REMANDED

Entitlement to service connection for a low back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from October 1970 to August 1972. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board issued a decision denying service connection for a low back disability. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court), which vacated the October 2020 Board decision, pursuant to an October 2021 Joint Motion for Remand (JMR). The Court remanded the matter for action consistent with the terms of the JMR.

Entitlement to service connection for a low back disability is remanded.

In the October 2021 JMR, the parties agreed that remand was warranted because the Board failed to ensure that VA fulfilled its duty to assist pursuant to 38 U.S.C. § 5103A.

Specifically, the parties found that the matter should be remanded in order for the Board to ensure that reasonable efforts are made to obtain any outstanding private medical records. In the Veteran's April 2016 Notice of Disagreement (NOD), he asserted that he had been treated by the same provider for twenty years for his low back problems. He also reported that he sought treatment for his back from Dr. Kimberly Shelton since 1976. However, the earliest record included in the record from Dr. Shelton is from 2008. The parties noted that there may be outstanding records from Dr. Shelton that are not included in the record and that remand is therefore warranted.

Accordingly, the matter must remanded to the Agency of Original Jurisdiction (AOJ) in order to ensure that reasonable efforts are made to obtain any outstanding private medical records. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also 38 U.S.C. § 5103A.

The matters are REMANDED for the following action:

1. Assist the Veteran in associating with the claims file updated and private outstanding treatment records, including but not limited to all treatment records from Dr. Kimberly Shelton, located at 1593 Yanceyville St., Suite 200, Greensboro, NC 27405. The AOJ is advised that the Veteran has stated that he has sought treatment from Dr. Shelton since 1976. All attempts to obtain these records must be documented.

2. After performing directive (1), perform any further indicated development.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Watkins, 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.