Citation Nr: 21008021 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-06 149 DATE: February 11, 2021 REMANDED 1. Entitlement to an evaluation in excess of 10 percent for service-connected left knee chondromalacia is remanded. 2. Entitlement to an evaluation in excess of 10 percent for service-connected right knee patellofemoral syndrome with degenerative joint disease is remanded. 3. Entitlement to an evaluation in excess of 10 percent prior to January 6, 2020, and in excess of 40 percent for service-connected compression fracture T-11 with osteoarthritis (back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to August 1983, and from February 1987 to December 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2018 hearing. These issues were previously before the Board in June 2019, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. In a July 2020 rating decision, the RO granted an evaluation of 40 percent for the service-connected back disability effective January 6, 2020, and granted service connection for left knee medial and lateral instability with recurrent subluxation associated with left knee chondromalacia, and service connection for residual surgery scar of the right knee. 1. Entitlement to an evaluation in excess of 10 percent for service-connected left knee chondromalacia is remanded. 2. Entitlement to an evaluation in excess of 10 percent for service-connected right knee patellofemoral syndrome with degenerative joint disease is remanded. 3. Entitlement to an evaluation in excess of 10 percent prior to January 6, 2020, and in excess of 40 percent after for service-connected back disability is remanded. Remand is required for substantial compliance with the June 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. The June 2019 Board remand instructed the RO to obtain and associate with the claims file any outstanding private treatment records (PTRs), and to provide the Veteran with new VA examinations. The Veteran underwent new VA examinations in January 2020. First, remand is required to obtain missing PTRs. VA’s duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). In November 2019, the RO sent a letter to the Veteran asking that he identify and authorize for release any outstanding PTRs. In December 2019, the Veteran submitted VA Form 21-4142a Authorization for Release of Information identifying East Ohio Regional Hospital as a private treatment provider. According to a December 2019 report of contact, the RO contacted the hospital and learned that the hospital permanently closed in October 2019, and closed the request out citing the reason as primary healthcare provider information invalid. The same day, the RO sent a letter to the Veteran informing him that they have requested the records from the hospital, but did not inform him that the hospital had closed, that they did not obtain the records, nor did they request that he provide updated information or that he try to obtain the records himself. The Board finds these efforts to obtain these records to be inadequate. While the RO included two web addresses on the report of contact as evidence supporting the unavailability of these records, these web addresses do not work. Due to the temporary and ever-changing nature of the internet, providing web addresses is often unsatisfactory, compared to simply adding copies of the information itself to the Veteran’s claims file, which is more permanent. It is unclear what these web addresses were intended to convey in terms of this records request. There is no indication on file whether the RO attempted to learn whether another entity holds East Ohio Regional Hospital’s records, or if they were destroyed. And as noted above, the RO failed to provide the Veteran with another opportunity to obtain these records himself. Accordingly, remand is required to obtain missing PTRs. The Board also notes that VA treatment records include several entries, such as one in February 2020, indicating that the Veteran’s knees are treated by “Pitt Orthopedics”, and that they were forwarding information to them. As these VA records are from the Pittsburgh VA, it is unclear whether they mean the orthopedics department within the Pittsburgh VA, or if they reference an outside treatment provider. This should be clarified while on remand, and if they are indeed an outside provider, then these records should be associated with the Veteran’s claims file as well. Second, remand is required to obtain missing VA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, and records from facilities with which the VA has contracted. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Numerous VA treatment records indicate that outside treatment records have been uploaded to Vista imaging. This includes entries in March, May, and November 2018, January, February, April, July, and December 2019, and January 2020. As the Board does not have access to Vista imaging, these records will need to be separately added to the claims file. Accordingly, remand is required to obtain missing VA records. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, specifically records uploaded to Vista imaging. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Secure the proper verifications from the Veteran and verify whether another entity holds the records from the now closed East Ohio Regional Hospital, and obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. Adding web addresses as proof of unavailability is insufficient, the information contained at those web addresses must be added directly to the Veteran’s claims file. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, including Pitt Orthopedics. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. K. MILLIKAN 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.