Citation Nr: 1740360 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 12-09 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for spondylolisthesis and degenerative disc disease of the lumbar spine, currently evaluated as 40 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned in November 2014. A transcript of that hearing is associated with the Veteran's Virtual VA paperless claims file. In June 2016, the Board issued a decision denying the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2017, the Court vacated and remanded the Board's decision for compliance with the instructions in a Joint Motion filed by the parties. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The June 2017 Joint Motion determined that VA had not met its duty to assist the Veteran. Specifically, after the Board's first remand in January 2015, the RO sent the Veteran a letter requesting him to identify any private or VA treatment providers who treated him for a back disability and asked him to return signed authorizations so VA could obtain records from any private treatment providers, to specifically include the Lower Keys Medical Center. The Joint Motion indicated a lack of clarity as to whether a January 2015 letter sent to the Veteran included the forms the Veteran was asked to return completed: VA Form 21-4142, (Authorization to Disclose Information), and VA Form 21-4142a, (General Release for Medical Provider Information). The body of the letter references these forms but the enclosure line only referenced a form as to where the Veteran should send written correspondence. Further, the Joint Motion found VA did not request that the Veteran obtain any relevant records and provide them to VA as he did not provide a release. See 38 C.F.R. § 3.159(e)(2) (2016). Accordingly, the Veteran's claim needs to be remanded for a new letter to the Veteran requesting him to identify any private or VA treatment providers who treated him for a back disability, to specifically include the Lower Keys Medical Center. The letter must include authorization and release forms (VA Forms 21-4142 & 21-4142a). The Board notes these forms are available on VA's website should additional copies be required. As the Veteran has not yet supplied authorization for VA to obtain private records after he was asked for such, he should be requested to obtain any relevant records and provide them to VA. He is certainly free to submit authorizations for VA to obtain these records, but is on notice that it is ultimately his responsibility to provide the evidence. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit or authorize VA to obtain the medical records of the Lower Keys Medical Center as well as the records of any other private medical provider not already provided. The letter must include VA Form 21-4142, (Authorization to Disclose Information), and VA Form 21-4142a, (General Release for Medical Provider Information). The Veteran should specifically be asked to obtain any relevant records from Lower Keys Medical Center and provide them to VA. All identified VA records should be added to the claims file. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. A copy of the letter and all forms sent with the letter must be associated with the file. 2. After the development requested is completed, readjudicate the claim for an increased rating for the lumbar spine disability. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).