Citation Nr: 21073038
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 17-30 059
DATE: December 7, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for patellar degenerative disease, right knee, is remanded.

Entitlement to an initial rating in excess of 10 percent for patellar degenerative disease, left knee, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1992 to December 1997 and from May 1999 to June 2014.  

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

1.   Entitlement to an initial rating in excess of 10 percent for patellar degenerative disease, right knee, is remanded.

2.   Entitlement to an initial rating in excess of 10 percent for patellar degenerative disease, left knee, is remanded.

In February 2019, the Board remanded the issues on appeal for further development.  Unfortunately, there has not been substantial compliance with the Board's previous remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The February 2019 Board remand directives requested that the Veteran complete a VA Form 21-4142 for all treatment for his left and right knees, among other disabilities.  The RO was requested to make two requests for the authorized records from the facilities, unless it was clear after the first request that a second request would be futile. 

The Veteran submitted the requested VA Form 21-4142 in March 2019, and again in October 2019.  He identified two private medical providers, and four military health care facilities where he had received post-service medical care.  In an October 2019 Statement in Support of Claim, VA Form 21-4138, the Veteran continued to identity where he received treatment for his knees and that he received knee treatment up from July 2011 and April 2018.  

In this case, not all of the records identified (namely the records from the four military health care facilities) by the Veteran have been obtained and there is no evidence in the claims file of unfulfilled requests for these records.  

To this extent, following the Veteran's October 2019 VA Form 21-4142, an October 2019 medical records request reject notice states that the Veteran's records request was rejected because they were "non-private" and no further attempts were made to obtain the records. 

Therefore, the RO failed to substantially comply with the February 2019 remand directives.  Stegall, 11 Vet. App. at 271.  

Accordingly, another remand is required to comply with the prior remand directives, and to fulfill the VA's duty to assist.  On remand the RO must make the required efforts to obtain the post-service records from the four military health care facilities identified by the Veteran in the March and October 2019 VA Form 21-4142. 

The matters are REMANDED for the following action:

Obtain and associate with the record, the Veteran's post-service treatment records from the four military health care facilities identified by the Veteran in the March and October 2019 VA Form 21-4142 for the period from July 2014 to the present.  Document all requests for information as well as all responses in the claims file.

 

 

Ashley Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Caban, 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.