Citation Nr: 21005516
Decision Date: 02/01/21	Archive Date: 02/01/21

DOCKET NO. 13-33 901
DATE: February 1, 2021

REMANDED

Entitlement to a temporary total rating under 38 C.F.R. § 4.30 based on convalescence following right shoulder surgery in September 2012 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 2006 to September 2009, including in Afghanistan, and is the recipient of the Combat Action Badge.

This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2015, October 2017 and February 2019. The issue has now been returned to the Board.

In its February 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to “obtain any physician orders (‘MD orders’), and the scanned ‘Vista Imaging’ document that are referenced in the Veteran’s September 5, 2012 VA treatment records.” The AOJ obtained the contents of the of the scanned Vista Imaging documents in September 2019, but there is no indication that the “physician orders” referenced in the September 5, 2012 VA treatment record have been requested. Notably, when obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159 (c)(2). Remand is required to ensure adequate measures to obtain the “physician orders” referenced in the September 5, 2012 VA treatment record, in compliance with the Board’s February 2019 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

Obtain the physician orders (“MD orders”) that are referenced in the Veteran’s September 5, 2012 VA treatment record. If the Agency of Original Jurisdiction (AOJ) cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile.  The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The claimant must then be given an opportunity to respond.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Paul J. Bametzreider

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.