Citation Nr: 21061452
Decision Date: 10/04/21	Archive Date: 10/04/21

DOCKET NO. 17-31 302
DATE: October 4, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent prior to January 21, 2020, in excess of 20 percent from January 21, 2020 to October 27, 2020, and in excess of 40 percent from October 28, 2020 for lumbosacral strain with intervertebral disc syndrome is remanded.

REASONS FOR REMAND

The Veteran had active duty service from February 2011 to March 2012.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

In a June 2017 VA Form 9, the Veteran requested to appear at a hearing before the Board.  However, in July 2019, he withdrew his hearing request.

The case was previously before the Board in November 2019 when it was remanded for further development.

VA's duty to assist includes the duty to make reasonable efforts to obtain relevant records, including private medical records.  38 U.S.C. § 5103A(b)(1).  

Subsequent to the November 2019 remand, in an August 2020 statement, the Veteran indicated that he underwent physical therapy for his back.  Remand is needed to attempt to obtain relevant treatment records.

Moreover, VA is required to make efforts to obtain records of "treatment at non-VA facilities authorized by VA".  38 C.F.R. § 3.159(c)(3).  VA treatment records show that the Veteran was authorized in 2017 through VA's Choice program to obtain treatment from a private primary care provider.  As the Veteran has been authorized by VA to obtain treatment through its Choice program, but these records have not been obtained and not associated with the claims file; remand is needed to obtain these treatment records.  See Sullivan v. McDonald, 815 F.3d 786, 793 (2016) (holding that 38 C.F.R. § 3.159(c)(3) extends the VA's duty to assist in obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities by VA, regardless of their relevance). 

In addition, updated VA treatment records should be obtained and associated with the claims file.    

The matters are REMANDED for the following actions:

1.  Ask the Veteran to complete a VA Form 21-4142 for the Veteran's complete chiropractic treatment records.  Make two requests for any authorized records, unless it is clear that a second request would be futile.

2.  Ask the Veteran to complete a VA Form 21-4142 for all VA Choice-authorized primary care treatment records.  Make two requests for any authorized records, unless it is clear that a second request would be futile.

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3.  Obtain the Veteran's VA treatment records for the period from November 2017 to the present.

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bonnie Yoon, 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.