Citation Nr: 21061377 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-04 038 DATE: October 1, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for the service-connected degenerative arthritis of the lumbosacral spine (hereinafter "back condition") prior to February 27, 2019 is remanded. Entitlement to a rating higher than 20 percent for the service-connected back condition from February 27, 2019 to July 20, 2021 is remanded. Entitlement to a rating higher than 40 percent for service-connected intervertebral disc syndrome (IVDS) from July 21, 2021 onward is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a decision on this matter in January 2020, denying a compensable rating for the Veteran's back condition prior to February 27, 2019 and a rating higher than 20 percent thereafter. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for partial remand (JMPR) granted by the Court in December 2020, the portion of the January 2020 Board decision that denied a compensable rating for the Veteran's back condition prior to February 27, 2019 and a rating higher than 20 percent thereafter was vacated, and the matter was remanded to obtain an adequate VA examination. Specifically, the Court held that the January 2020 Board decision erred in relying on the Veteran's March 2019 VA examination, which did not comply with Sharp, and failed to provide an adequate statement of reasons or bases. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Per the JMPR, the Board remanded the matter in April 2021 for updated treatment records, including missing private treatment records, and a new VA examination. While the RO obtained updated VA treatment records and a new VA examination, and made one attempt to obtain the missing private treatment records, the Board finds that the VA examination did not substantially comply with the remand directives, and further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) The April 2021 remand directives requested, in part, that a VA examiner elicit from the Veteran a detailed history of his symptoms and functional loss related to his back condition since May 2016, the effective date of service connection, including as related to flare-ups and repetitive use. The July 2021 VA examiner did not elicit such a history. Rather, the examiner documented only the Veteran's general history of his back condition related to when it began, his symptoms at onset, his current symptoms and treatment, and the impact of the condition. The examination report reflects no questioning, prompting, or responses related to the severity of the Veteran's back condition since May 2016 beyond those related to his reports of current severity. As such, the Board finds that the July 2021 VA examiner did not substantially comply with the Board's remand directives. Stegall, 11 Vet. App. at 271. The Board finds that remand is also necessary to ensure that the Veteran has been afforded reasonable efforts to obtain his private treatment records from Dr. S. in accordance with 38 C.F.R. § 3.159(c)(1). By way of background, in the April 2021 remand, the Board directed the RO to obtain private treatment records based on the Veteran's November 2020 Correspondence. In the November 2020 Correspondence, the Veteran specifically requested that VA send authorization to obtain private treatment records from Dr. S., his private chiropractor, who has treated him for 10 years, particularly when his back pain becomes unbearable. The Board recognizes that these records potentially contain documentation of range of motion testing, flare-up complaints, functional impairment complaints, and other notations relevant to determining the severity of the Veteran's back condition throughout the appeal period. While this matter was in remand status, the Veteran authorized release of his treatment records from Dr. S., his private chiropractor. The RO contacted Dr. S.'s office in an attempt to obtain the records, was informed that the office could not locate the Veteran's records in their system, and consequently closed the request as "No Records Found" in a VA Form 27-0820, Report of General Information. However, the Board is not convinced that either these records do not exist or that further efforts to obtain them would be futile. The Veteran submitted a letter from Dr. S. dated December 8, 2020 stating that the Veteran has been a patient at his chiropractic center for five plus years. The letter refers to the Veteran by his middle name rather than his first name. The Board notes that the Veteran's June 2021 VA Forms 21-4142 and 21-4142a, which authorize release of these records, include only his middle initial rather than his full middle name, which the Veteran may use as his preferred name. Because the RO has only made one attempt to obtain these records, the Veteran has not been afforded "reasonable efforts" from VA in assisting him in obtaining this evidence. See 38 C.F.R. § 3.159(c)(1). On remand, the RO should again attempt to obtain the private treatment records from Dr. S., noting that the Veteran's records may be listed under his middle name rather than his first name. Only after reasonable efforts are made to obtain these records, if unsuccessful, the RO must notify the Veteran of its inability to obtain the records pursuant to 38 C.F.R. § 3.159(e)(1), which requires notice of: the identity of the records unable to be obtained; an explanation of the efforts made by VA to obtain the records; a description of further action VA will take regarding the claim, including notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and the Veteran's ultimate responsibility to provide the records. Accordingly, while the Board sincerely regrets the additional delay, further remand ensure compliance with the Board's previous remand directives and provide the Veteran with reasonable efforts to obtain his private treatment records in accordance with 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following action: 1. Take all reasonable efforts to obtain the Veteran's private treatment records from Dr. S., his private chiropractor. Note that the Veteran submitted a letter from Dr. S. dated December 2020, which suggests that these records do in fact exist and may be located by referencing the Veteran's middle name rather than his first name. If reasonable efforts to obtain these records are unsuccessful, notify the Veteran in accordance with 38 C.F.R. § 3.159(e)(1) and provide with him a reasonable amount of time to personally submit the records. 2. DO NOT PROCEED with the following until the above development has been completed. 3. Schedule a new VA examination to assess the severity and functional limitations of his back condition. The examiner should review the full claims file, including any newly associated treatment records, and continue with the following: (a.) Elicit from the Veteran a complete and detailed history of his symptoms and functional loss since the effective date of service connection (May 2016 forward), both in general but also during flares and after repetitive use. (b.) Conduct range of motion testing and record the results for active motion, passive motion, weight-bearing, and non-weight-bearing. (c.) Clearly and specifically describe the impact of flare-ups and repeated use over time on the Veteran's functioning, including range of motion. Assess/estimate any additional functional impairment in degrees of additional range of motion loss during a flare-up or after repeated use over time. (d.) If any requested findings cannot be obtained or estimated without resorting to mere speculation, the examiner must clearly explain why with full supporting rationale. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.