Citation Nr: 21074206 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-30 115 DATE: December 14, 2021 REMANDED A rating in excess of 30 percent for bilateral pes planus. A total disability rating based on individual unemployability due to service-connected disability (TDIU). REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from May 1952 to April 1954. This matter is on appeal from a July 2017 rating decision. Most recently in July 2021, the Board granted service connection for vertigo, dizziness, and poor balance, as well as residuals of a cold injury of the hands. At that time, the Board also remanded the bilateral pes planus rating issue for further development. 1. A rating in excess of 30 percent for bilateral pes planus. The Board's July 2021 remand directed the RO to obtained medical records from a private (non-VA) treatment provider, Centennial Ortho & Podiatry dated January 2020 to July 2020, because those records had been received by VA and scanned into the Veteran's electronic health record. The Board specified that the RO should obtain all scanned documents contained in the VistA Imaging system. Upon remand, the RO obtained the Veteran's complete VA medical records. The private medical records identified by the Board were not amongst the medical records associated with the claims file. The RO issued a memorandum in September 2021 explaining why the private medical records were not obtained: "VISTA is not a repository that is used by [VA] anymore," and the "[r]ecords from Centennial Ortho & Podiatry are private medical records." The RO noted that the Veteran did not respond to the request for an authorization/release to allow VA to obtain those medical records. The RO's actions were not in substantial compliance with the Board's remand directives. As the Board explained in its remand, the private medical records were obtained by the Veteran's VA Medical Center and were scanned into his electronic health record. This is clearly documented in the VA medical records. Hence, it is undebatable that the private medical records are in VA's actual possession. The RO's actions show it did not attempt to retrieve those private medical records from the repository in which they are currently archived, whichever repository that may be. Whether they are archived in VISTA rather than a different repository is immaterial. The Board's directive was that the private medical records be obtained, not that they be obtained from VISTA. In short, the Board directed those records to be associated with the claims file. The RO was required to obtain all of the scanned-in private medical records, not simply those that were in VISTA and could be easily obtained. Because the archived records were not associated with the claims file, there was not substantial compliance with the Board's remand directives, and further remand is warranted. See, e.g., Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009). 2. A TDIU. The Veteran filed a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability, in November 2021. He claimed unemployability due to his service-connected disabilities, including pes planus. As the pes planus rating is currently on appeal, the issue of a TDIU has been raised as a component of the initial rating claim on appeal. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU issue is intertwined with the pes planus claim. Therefore, a remand of the TDIU issue is also warranted. (Continued on the next page) The matters are REMANDED for the following action: Obtain the Veteran's outstanding VA treatment records, including records of all treatment obtained through VA's Choice program and all private medical records scanned into his electronic health record, regardless of the repository in which they are currently archived. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.