Citation Nr: 21069664 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 19-01 716 DATE: November 19, 2021 REMANDED Entitlement to ratings in excess of 10 percent prior to July 1, 2019 and in excess of 20 percent on and after July 1, 2019 for degenerative disc disease L3-L4 and L4-L5 is remanded. Entitlement to ratings in excess of 10 percent prior to March 3, 2016 for left meniscus tear with Baker's cyst and in excess of 30 percent from May 1, 2017 to February 6, 2018 and 60 percent on and after February 7, 2018 for a left total knee replacement is remanded. Entitlement to a compensable rating for a left knee surgical scar is remanded. Entitlement to a rating in excess of 10 percent for a left foot bunion of the middle joint of the second left toe is remanded. Entitlement to a compensable rating for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from February 1973 to February 1976 and in the Marine Corps from January 1978 to October 1993. The Veteran testified before the undersigned Veterans Law Judge during a March 2020 hearing and the transcript is of record. These matters are on appeal from a February 2015 rating decision. In an August 2015 rating decision, VA granted a temporary 100 percent rating for a left foot bunion of the middle joint of the second left toe from May 8, 2015 to August 31, 2015. In an August 2016 rating decision, VA granted a temporary 100 percent rating for a total left knee replacement from March 3, 2016 to April 30, 2017. In an August 2017 rating decision, VA granted a temporary 100 percent rating for a left total knee replacement from July 25, 2017 to August 31, 2017. In a September 2018 rating decision, VA granted a temporary 100 percent rating for a left total knee replacement from May 23, 2018 to August 31, 2018. In a November 2018 rating decision, VA extended that temporary 100 percent rating for a left total knee replacement to June 30, 2019. In a December 2019 rating decision, VA granted a temporary 100 percent rating for degenerative disc disease L3-L4 and L4-L5 from March 29, 2019 to June 30, 2019. In a March 2021 rating decision, VA granted a temporary 100 percent rating for degenerative disc disease L3-L4 and L4-L5 from December 11, 2020 to March 31, 2021. Accordingly, the issues of entitlement to an increased rating for the Veteran's left foot bunion, left total knee replacement, and degenerative disc disease during those periods when a temporary 100 percent rating was in effect for the respective disability are no longer before the Board. The discussion in this document is not for those times when a temporary total rating was in effect for the respective disability. Nothing herein should be taken as affecting those periods. In a July 2020 decision, the Board remanded the issues listed above to attempt to obtain additional treatment records and to afford the Veteran additional VA examinations. The Board will discuss the compliance of the Agency of Original Jurisdiction (AOJ) with its instructions below. The Board also remanded a claim for service connection for a duodenal ulcer. In a November 2020 rating decision, the AOJ granted service connection for a duodenal ulcer. This issue is no longer before the Board. In a September 2021 statement, the Veteran's representative treated the issue of entitlement to an increased rating for a duodenal ulcer as before the Board; because the Veteran has not submitted any form of appeal with regard to the rating, this issue is not on appeal. 1. Entitlement to ratings in excess of 10 percent prior to July 1, 2019 and in excess of 20 percent on and after July 1, 2019 for degenerative disc disease L3-L4 and L4-L5 is remanded. 2. Entitlement to ratings in excess of 10 percent prior to March 3, 2016 for left meniscus tear with Baker's cyst and in excess of 30 percent from May 1, 2017 to February 6, 2018 and 60 percent on and after February 7, 2018 for a left total knee replacement is remanded. 3. Entitlement to a compensable rating for a left knee surgical scar is remanded. 4. Entitlement to a rating in excess of 10 percent for a left foot bunion of the middle joint of the second left toe is remanded. 5. Entitlement to a compensable rating for hypertension is remanded. Treatment records from the Washington, DC VA Medical Center prior to 2015 have been associated with the claims file. However, the Veteran contends that he also obtained treatment from the Baltimore division of the VA Maryland Health Care System from 1993 to 2014. Because this includes part of the period on appeal for the Veteran's increased rating claims, the Board remanded the claims on appeal to attempt to obtain these records. On remand, the AOJ requested the records, but received a negative response. The AOJ did not make a formal finding that further attempts to obtain the records would be futile and did not notify the Veteran of the futility of its attempts. For these reasons, in a September 2021 statement, the Veteran's representative contends that the AOJ's efforts were insufficient to fulfill VA's duty to assist. Another remand is warranted to attempt again to obtain these records. See 38 U.S.C. § 5103A(c)(1)(B) (2012); 38 C.F.R. § 3.159(c)(3) (2021). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran, specifically including but not limited to any records from the VA Maryland Health Care System dated between 1993 and 2014. The Agency of Original Jurisdiction (AOJ) shall document, in writing, all efforts to obtain these records, to include any formal finding that the records are unavailable. Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records from the VA Maryland Health Care System dated between 1993 and 2014 are available, the claims folder must indicate this fact and the Veteran should be notified; this notice should advise the Veteran to submit any copies of these records he might have in his possession. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.