Citation Nr: 19161663 Decision Date: 08/08/19 Archive Date: 08/08/19 DOCKET NO. 10-28 401 DATE: August 8, 2019 REMANDED Entitlement to an initial disability evaluation in excess of 20 percent for right knee degenerative arthritis, status-post traumatic fracture with right tibia rod/screws retain, status-post removal of hardware, and intramedullary rod removal with excision of bony prominence, midshaft right tibia, prior to February 11, 2015, and in excess of 40 percent beginning May 1, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1982 to November 2008. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In July 2016, the Board remanded the matter for further development. Now the matter is before the Board. The Veteran is seeking for a higher initial evaluation for his service-connected right knee degenerative arthritis, status-post traumatic fracture with right tibia rod/screws retain, status-post removal of hardware, and intramedullary rod removal with excision of bony prominence, midshaft right tibia. However, the Board finds more development is necessary prior to final adjudication. The Veteran underwent a surgery to remove hardware from his right knee in February 2015. The Board notes that the Veteran’s orthopedic surgeon Dr. T.M. performed the Veteran’s February 2015 right knee surgery. During the March 2016 hearing, the Veteran testified that the Veteran has been receiving ongoing treatments from Dr. T.M. The previous July 2016 Board Remand Order instructed the Agency of Original Jurisdiction (AOJ) to send a letter to the Veteran to request his assistance in verifying any additional treatment record and to obtain the Veteran’s right knee treatment record from his orthopedic surgeon Dr. T.M. After the July 2016 Board Remand, although the RO did not send the instructed letter to the Veteran, the Veteran has provided an authorization to release his records from Dr. T.M.’s practice. See July 2016 VA Form 21-4142 Authorization to Disclose Information to VA. However, the Board notes that the RO did not attempt to obtain the Veteran’s treatment record from Dr. T.M. The Board acknowledges that the Veteran submitted some treatment records from Dr. T.M. in April 2019. However, the Board is unable to determine whether the records submitted by the Veteran represents a complete record from Dr. T.M.’s practice as it only contains one operative note from July 2016 and two follow-up notes from July and August 2018. See also April 2019 Fax Cover Sheet (the Veteran indicated he is providing “some” of supporting documents from Dr. T.M.) Based on above, the Board finds that there has not been a substantial compliance with the July 2016 Remand directives in regard to obtaining the Veteran’s treatment records from his orthopedic surgeon Dr. T.M. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the matter is REMANDED for the following action: 1. The AOJ must contact the Veteran and his representative to request their assistance in verifying any outstanding treatment records for the Veteran’s right knee disability. The AOJ must provide the Veteran a VA Form 21-4142 and request to identify the name(s) and address(es) of Dr. T.M.’s practice and for any private or VA medical providers who have provided treatment for his right knee disability since his right knee surgery in February 2015. Any record requests or responses must be associated with the Veteran’s electronic claims file. 2. After completing the above action and any other necessary development, the issue on appeal must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.