Citation Nr: 21003729 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 06-30 092 DATE: January 22, 2021 REMANDED Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity from July 30, 2015, on a substitution basis, is remanded. Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity from July 30, 2015, on a substitution basis, is remanded. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the left lower extremity from July 30, 2015, on a substitution basis, is remanded. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the right lower extremity from July 30, 2015, on a substitution basis, is remanded. Entitlement to an initial evaluation greater than 30 percent for the Veteran's peripheral neuritis of the left lower extremity from October 7, 2009, to July 30, 2015, on a substitution basis, is remanded. Entitlement to an evaluation in excess of 20 percent for the Veteran's type II diabetes mellitus, on a substitution basis, is remanded. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the right lower extremity prior to July 30, 2015, on a substitution basis, is remanded. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the left lower extremity prior to October 7, 2009, on a substitution basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1964 to August 1972. He died in November 2016. The Appellant is the Veteran’s surviving spouse. She was substituted by the Agency of Original Jurisdiction (AOJ) in a November 2017 decision. These matters are on appeal from a November 2004 rating decision. In a May 2018 decision, the Board of Veterans’ Appeals (Board) denied the issues on appeal. The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the Board’s May 2018 decision regarding the issues that were denied. In September 2019, the Board remanded the appeal for additional evidentiary development consistent with the April 2019 JMPR. 1. Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity from July 30, 2015, on a substitution basis, is remanded. 2. Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity from July 30, 2015, on a substitution basis, is remanded. 3. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the left lower extremity from July 30, 2015, on a substitution basis, is remanded. 4. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the right lower extremity from July 30, 2015, on a substitution basis, is remanded. 5. Entitlement to an initial evaluation greater than 30 percent for the Veteran's peripheral neuritis of the left lower extremity from October 7, 2009, to July 30, 2015, on a substitution basis, is remanded. 6. Entitlement to an evaluation in excess of 20 percent for the Veteran's type II diabetes mellitus, on a substitution basis, is remanded. 7. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the right lower extremity prior to July 30, 2015, on a substitution basis, is remanded. 8. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the left lower extremity prior to October 7, 2009, on a substitution basis, is remanded. In the April 2019 JMPR, the Court found that the Board erred by failing to obtain the Veteran’s VA and private treatment records. The JMPR specifically identified missing private medical records from Dr. S.K.C., missing treatment records from the VA Medical Center (VAMC) in Brecksville, Ohio, missing VA September 2013 rehabilitation outpatient records, and missing VA August 2013 physical therapy records. The JMPR indicated that the September 2013 rehabilitation outpatient records and August 2013 physical therapy records are stored in the Veterans Health Information Systems and Technology Architecture (VistA). In September 2019, the Board remanded the case to obtain the missing medical records identified in the April 2019 JMPR. The AOJ obtained the private medical records from Dr. S.K.C., but did not obtain the VA treatment records identified in the remand directives. Furthermore, the AOJ did not make a formal finding of unavailability for these records. There has not been substantial compliance with the September 2019 Board remand directives. Therefore, a remand is required to obtain the outstanding VA treatment records. The matters are REMANDED for the following actions: 1. Obtain all available VA treatment records for the Veteran from the VAMC in Brecksville, Ohio. If the records are unavailable, the AOJ must make a formal finding of unavailability and inform the Appellant. 2. Obtain the Veteran’s August 2013 outpatient physical therapy records contained in VistA. If the records are unavailable, the AOJ must make a formal finding of unavailability and inform the Appellant. 3. Obtain the Veteran’s September 2013 outpatient physical therapy records contained in VistA. If the records are unavailable, the AOJ must make a formal finding of unavailability and inform the Appellant. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Appellant’s satisfaction, send the Appellant and her representative a Supplemental Statement of the Case and provide them an opportunity to respond. If   necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.