Citation Nr: 21067715
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 17-18 521
DATE: November 5, 2021

REMANDED

Entitlement to a disability rating in excess of 10 percent for residuals, internal derangement, right knee with degenerative joint disease is remanded.

Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded.

REASONS FOR REMAND

The Veteran served honorably on active duty from September 1965 to March 1969. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 

In October 2020, the Board remanded the claims on appeal to the Agency of Original Jurisdiction (AOJ) for further development. For the reasons explained below, the Board finds that there has not been substantial compliance with its prior remand such that an additional remand is now required. See Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to a disability rating in excess of 10 percent for residuals, internal derangement, right knee with degenerative joint disease is remanded.

2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded.

As part of the October 2020 Board remand, the Board ordered the RO to obtain private treatment records identified by the Veteran, associate all obtained private treatment records with the claims file, and after that development was complete, schedule a VA examination for the Veteran's service-connected bilateral knee conditions. Specifically, the Board identified outstanding private treatment records where the Veteran received treatment from a non-VA provider, Dr. Patel. 

Although the RO requested authorizations from the Veteran once in October 2020, see e.g., October 20, 2020 subsequent development letter, at the time of the September 2021 Supplemental Statement of the Case (SSOC), it appears that the Veteran had not submitted the requested forms. VA is required to make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. 38 C.F.R. § 3.159(c)(1). Such finding has not been determined in this case. Therefore, on remand, additional attempts to obtain records from Dr. Patel must be made. However, the Veteran is reminded that VA's duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). 

The matters are REMANDED for the following action:

1. Ask the Veteran to identify all private providers who have treated his bilateral knee disabilities. He should provide a VA Form 21-4142 for each provider, to include Dr. Patel. At least two attempts to obtain records from private providers must be made. In the alternative, the Veteran may submit any outstanding records on his own behalf. If any requested records are unavailable, the Veteran should be notified of such. 

2. Then, readjudicate the claims. 

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. M. Lowman, 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.