Citation Nr: 21063146
Decision Date: 10/13/21	Archive Date: 10/13/21

DOCKET NO. 08-27 399
DATE: October 13, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for a back disability, to include lumbar myositis and degenerative disc disease, for the period prior to December 31, 2008, and in excess of 40 percent thereafter, is remanded.

Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded.

REASONS FOR REMAND

The Veteran had active duty service with the United States Army from May 1983 to January 1999 and from February 2003 to January 2004.

This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. at 271.

In April 2021, the Board remanded these claims to obtain additional evidence. Specifically, the Board remanded to the agency of original jurisdiction (AOJ) to associate with the electronic claims file the February 2007 rating decision; November 2007 notice of disagreement; August 2008 statement of the case; September 2008 VA form 9; and any other procedural documents, to include any notice letters, pertaining to the issues on appeal. In June 2021 a supplemental statement of case was issued and did not list the previous procedural documents listed. The Board has reviewed the claims file, and the procedural documents are not of record. Further, there is no VA memorandum issued indicating that these procedural documents are not obtainable. Therefore, on remand, these outstanding procedural documents must be associated with the virtual record, or their absence explained. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records. 

2. Appropriate efforts should be made to obtain and associate with the case file the following procedural documents:

a.	The February 2007 rating decision,

b.	the November 2007 notice of disagreement,

c.	the August 2008 statement of the case,

d.	the September 2008 substantive appeal (VA Form 9), and 

e.	any other procedural documents, to include any notice letters, pertaining to the issues on appeal.

All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them.

3. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Baxter

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.