Citation Nr: 21071053
Decision Date: 11/29/21	Archive Date: 11/29/21

DOCKET NO. 17-51 426
DATE: November 29, 2021

REMANDED

Entitlement to an evaluation in excess of 10 percent prior to February 28, 2020, and 20 percent thereafter for service-connected intervertebral disc syndrome with degenerative joint and disc disease (lumbar disability) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1978 to February 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). 

This issue was previously before the Board in November 2019, when it was remanded for further development. While on remand, in a June 2020 rating decision, the RO granted an evaluation of 20 percent for the lumbar disability, and 20 percent for the service-connected radiculopathy of the bilateral lower extremities, effective February 28, 2020. As this does not represent a full grant of the benefits sought, the lumbar disability claim remains on appeal. The case has since been returned to the Board for appellate review.

Entitlement to an evaluation in excess of 10 percent prior to February 28, 2020, and 20 percent thereafter for service-connected intervertebral lumbar disability is remanded.

Remand is required for substantial compliance with the November 2019 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, and VA medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2).

The November 2019 Board remand instructed the RO to provide the Veteran with an opportunity to identify and authorize for release any relevant medical treatment records. In December 2019, the RO sent a letter to the Veteran asking that they provide that information. In January 2020, the Veteran submitted a completed VA Form 21-4142a General Release for Medical Provider Information, identifying and authorizing for release records from Darnall Army Medical Center (DAMC), DDW, and Advanced Pain Care. The RO noted that the DAMC records are non-private, and that the request for those records would need to be worked via the traditional process. The Veteran was sent a letter explaining that records were requested from DDW and Advanced Pain Care, but that it is the Veteran's responsibility to see that VA receives them. Later that month, the office of DDW confirmed that no records could be found for the Veteran. Shortly after, records from Advanced Pain Care were successfully obtained and added to the Veteran's claims file. However, despite this development for the private treatment records, it does not appear that the RO performed any further development for the DAMC records. While records from DAMC are part of the existing claims file, they only cover treatment through 2017, and the Veteran identified on the VA Form 21-4142a that they had received treatment through 2019. Accordingly, remand is required to obtain these records.

The matters are REMANDED for the following action:

Ask the Veteran to identify all outstanding treatment records relevant to their lumbar disability claim, including those from Darnall Army Medical Center.  All identified VA records should be added to the claims file.  All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records.

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Rogos

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.