Citation Nr: 22018485 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-11 216A DATE: March 29, 2022 REMANDED Entitlement to service connection for tendonitis in the right shoulder is remanded. Entitlement to service connection for the lumbar spine to include degenerative arthritis is remanded. Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from December 1978 to January 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in September 2018 and September 2020 for further development. Regrettably, the Board finds that another remand is warranted before the Board can issue an appellate decision. 1. Entitlement to service connection for tendonitis in the right shoulder is remanded. 2. Entitlement to service connection for the lumbar spine to include degenerative arthritis is remanded. 3. Entitlement to service connection for diabetes mellitus is remanded. Pursuant to the September 2020 Board remand, the RO was asked to prepare a memorandum of formal finding of unavailability of all service and post-service records that were not obtained through efforts to rebuild the claims file. Specifically, the RO was asked to notify the Veteran of specific records that could not be obtained. A review of the claims file demonstrates that a September 2020 "final attempt letter" was sent to the Veteran indicating that attempts were made to obtain Federal records on June 17, 2019 and that "some post-service medical records, both VA and private, were obtained; however, there were records that could not be obtained." In October 2020 correspondence, the Veteran indicated that his medical files were not completely obtained. In particular, he noted treatment at Physical Therapy Center in Pennsylvania; VAMC New Orleans and physician on the Westbank of New Orleans; Dr. G.R. from 1993 to 2005 in Gretna, GA; and a PCM on Scott Blvd (who's office closed) but records possibly transferred to current physician Dr. C.C. in Ellenwood, GA. The Veteran asserted that he is still unclear whether VA was able to obtain the medical histories or whether records were destroyed in Hurricane Katrina. In an October 2020 "subsequent development letter" from the VA, the Veteran was informed that research of his files demonstrated that a request for records from Physical Therapy Center in Pittsburg, PA was not made and an enclosed VA Form 21-4142 for release of medical provider information was provided. Additionally, it was noted that records were previously requested from Dr. G.R. but yielded unsuccessful results because they were destroyed in Hurricane Katrina. A November 2021 email correspondence between VA personnel demonstrates uncertainty of information being requested from the September 2020 Board remand, particularly requesting clarification on what needs to be done because "documents are sparse, and do not tell anything either." A copy of a September 28, 2020 email thread was uploaded and read: "We do not need to send this back to BVA. Please review our attempts to obtain the records mentioned in the Remand dated 09/26/2018 and notify the Veteran of any records we were unsuccessful in obtaining." The Board is doubtful whether VA substantially complied with the September 2020 remand, and it appears there remains uncertainty with the information being requested. Notably, a Memorandum of Formal Finding of Unavailability of all Service and Post-Service Records has not been associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998). In this regard, as evidenced by the Veteran's October 2020 statement, it would be helpful for the Veteran to know and understand which records in particular were unsuccessful in retrieving. Therefore, on remand a formal finding of unavailability must be made, and the Veteran should be notified of such and afforded the appropriate opportunity to respond. Additionally, the Board notes that the Veteran has not been afforded a VA examination for his claimed diabetes mellitus. In his March 2014 and 2016 correspondences, the Veteran reported that he was diagnosed with diabetes upon retirement and has been on medication since that time, noting that while diabetes was not diagnosed during active duty, the diagnosis was never considered. Private records in February 2020 demonstrate diagnosis and ongoing treatments for diabetes. As such, a remand is warranted to afford the Veteran a VA examination for his claimed diabetes mellitus. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). In this case, there is evidence and/or symptoms of his claimed diabetes mellitus and assertions that a diagnosis was made immediately upon separation and was never considered during active duty. Accordingly, a remand is required for an examination to determine the nature and etiology of the Veteran's diabetes mellitus. The matters are REMANDED for the following actions: 1. Prepare a Memorandum to the file including a formal finding of unavailability of all service and post-service records, outlining particular service records and private records, to include names of providers, that could not be obtained through efforts to rebuild the claims file and reasons why. Then, notify the Veteran of the specific records that could not be obtained, and explain the efforts made to obtain the missing records. Then, provide the appropriate time for response. For reference, the Veteran has outlined all private providers in an October 2020 correspondence letter. 2. Schedule the Veteran to determine the nature and etiology of the claimed diabetes mellitus. Provide a copy of this remand and record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Determine whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's diabetes mellitus had its onset during service or is otherwise related to active service. The examiner must consider available service treatment records and post-service treatment records, and acknowledge that there are outstanding medical records that were unattainable due to no fault of the Veteran. The examiner must also consider the Veteran's assertions that a diagnosis was made immediately upon separation and was never considered during active duty. A complete rationale must be provided for any opinion rendered. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 3. Readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.