Citation Nr: 21070819 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 12-27 570A DATE: November 26, 2021 REMANDED The claim for an initial disability rating in excess of 10 percent for service-connected status post left knee anterior cruciate ligament (ACL) reconstruction is remanded. The claim for an initial compensable disability rating for service-connected left leg neuropathy prior to December 9, 2015, and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 2005 until his honorable discharge in April 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In February 2021, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain outstanding VA medical records and obtain new VA examinations addressing the severity of the Veteran's left knee and left leg disabilities, which the VA Regional Office accomplished. Unfortunately, on review of the file, VA's duty to assist has not been satisfied with respect to obtaining outstanding private medical records. Thus, remand is again required. 1. The claim for an initial disability rating in excess of 10 percent for service-connected status post left knee anterior cruciate ligament (ACL) reconstruction is remanded. 2. The claim for an initial compensable disability rating for service-connected left leg neuropathy prior to December 9, 2015, and in excess of 10 percent thereafter is remanded. VA has a duty to assist veterans in the procurement of various records in developing their claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty includes obtaining relevant records not in the custody of a Federal department or agency, such as records from medical care providers. 38 C.F.R. § 3.159(c)(1); 38 U.S.C. § 5103A(b)(1). This obligation is contingent upon a claimant providing sufficient information to facilitate VA's attempt to obtain such evidence. 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1)(i). "Relevant records" are those records that relate to the injury or condition for which the veteran is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Because "it is not the case that a record's relevance can always be determined without reviewing the record itself," there must be specific reason to believe records may give rise to pertinent information to conclude that they are relevant and, thus, give rise to VA's duty to attempt to obtain them. Id. at 1323. Once the duty to assist is triggered, VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(c)(1). VA "shall make not less than two requests to a custodian of a private record in order for an effort to obtain relevant private records to be treated as reasonable under this section, unless it is made evident by the first request that a second request would be futile in obtaining such records." 38 U.S.C. § 5103A(b)(2)(B); 38 C.F.R. § 3.159(c)(1). VA will refrain from providing assistance in obtaining evidence if there is "no reasonable possibility" that any further VA assistance would aid in substantiating the claim. 38 C.F.R. § 3.159(d). On May 29, 2021, following the Board's remand, the Veteran submitted VA Form 21-4142, Authorization for Release of Information. In that document, the Veteran identified five medical care providers who may have potentially relevant information pertaining to his claims. The VA Regional Office was able to obtain medical records from four of those providers. As to the fifth provider, Northbay Center for Primary Care, the VA Regional Office documented the steps it took to obtain these records within VA Form 27-0820, Report of General Information. On June 28, 2021, a VA representative reported that it received correspondence from Northbay Center for Primary Care indicating that the request for records could not be processed for the dates requested. The representative reported that the medical provider required the Veteran to submit a new request due to an error in the dates requested. Within VA Form 27-0820, the VA representative wrote, "Closing the request as Dates of Treatment Discrepancy." VA sent the Veteran a correspondence dated July 6, 2021, informing him it was unable to obtain records from Dr. S., one of the five medical providers identified by the Veteran in his VA Form 21-4142. The Board, however, finds that VA did obtain records from Dr. S., which were received by VA on June 30, 2021. There is no indication these records are incomplete. The Board finds no evidence that VA informed the Veteran that it was unable to obtain his treatment records from Northbay Center for Primary Care. Thus, the Board believes the July 6, 2021, letter probably was meant to reference Northbay Center for Primary Care rather than Dr. S. Nevertheless, there is no indication in the record that VA informed the Veteran that Northbay Center for Primary Care had requested a new release form in order to release his medical records. Nor is there any indication in the record that reasonable attempts were made following contact with Northbay Center for Primary Care to obtain a new release from the Veteran or otherwise seek his medical records. Therefore, the Board finds VA has not satisfied its duty to assist at this time. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records from: (a.) Northbay Center for Primary Care; and (b.) Any other private treatment received for his left knee and left leg disabilities not otherwise of record. Reasonable attempts must be made to obtain relevant private medical records. If VA is unable to obtain any identified records, then the Veteran and his representative must be informed of the steps taken and the results. All steps taken to obtain these records should be documented within the claims file. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.