Citation Nr: 21009307 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-21 396 DATE: February 22, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to July 27, 2020 and in excess of 60 percent thereafter for restrictive lung disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from June 1965 to June 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The July 2012 rating decision reduced the rating for the Veteran’s service-connected restrictive lung disease from 30 percent to 10 percent effective October 1, 2012. In a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s rating for his service-connected restrictive lung disease to 60 percent effective July 27, 2020. This case was previously before the Board in February 2016, June 2018, and November 2019 when the Board remanded it for further development. In the February 2016 Board decision, the Board concluded the reduction from 30 percent to 10 percent for the Veteran’s service-connected restrictive lung disease was proper. Accordingly, the rating reduction portion of the claim is not before the Board. Furthermore, in the February 2016 Board decision, the Board assumed jurisdiction of the Veteran’s TDIU claim as part and parcel of the increased rating claims on appeal at the time of the February 2016 Board decision. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to a rating in excess of 10 percent prior to July 27, 2020 and in excess of 60 percent thereafter for restrictive lung disease is remanded. A review of the record illustrates that there may be outstanding private treatment records that may be relevant to the Veteran’s claim for an increased rating for restrictive lung disease. Thus, an additional Board remand is necessary. Following the November 2019 Board remand, the Veteran submitted a VA Form 21-4142, Authorization for Release of Information, in January 2020 for records from Dr. S. at Fort Sanders Regional Medical Center, North Knoxville Medical Center, and Summit Medical Group. Regarding the records from Dr. S., the Veteran indicated on the VA Form 21-4142 that he received treatment from Dr. S. from January 2013 to 2015. A January 2020 VA Form 21-0820, Report of General Information, details that VA closed out the request for records on January 30, 2020 based on there being no records for the dates requested. In an April 2020 letter to the Veteran, VA informed the Veteran that the dates provided on the January 2020 VA Form 21-4142 were incorrect for records from Dr. S. The Veteran submitted an additional VA Form 21-4142 in April 2020 for records from Dr. S. from January 2012 to 2013. In May 2020, VA received an August 2012 chest CT from Fort Sanders Regional Medical Center. Notably, the August 2012 chest CT reflects that Dr. A.S., (a.k.a. Dr. S.) was the ordering physician. A May 2020 VA Form 21-0820 reflects that the Veteran’s spouse called VA and informed VA that Dr. S. is employed at Knoxville Heart Group and not Fort Sanders Regional Medical Center, and she reported that the records from Dr. S. are located at Knoxville Heart Group. The claims file contains no records from Knoxville Heart Group. As such, a remand of the claim is required to allow the Veteran to complete an updated VA Form 21-4142 for records from Dr. A.S. at Knoxville Heart Group, and to allow VA to request the records. If any of the records requested are unavailable, VA is to clearly document the claims file to that effect and notify the Veteran of any inability to obtain the records in accordance with 38 C.F.R. § 3.159(e). Regarding the records from North Knoxville Medical Center, the Veteran indicated in the January 2020 VA Form 21-4142 that he received treatment there from March 2010 to the present. A January 28, 2020 journal entry in a February 2020 VA Report of Contact reflects that North Knoxville Medical Center sent records to VA in October 2018 and would only send any records since that date. A review of the claims file illustrates that there are no medical records from North Knoxville Medical Center in the file since VA received the records from North Knoxville Medical Center in October 2018. In addition, a review of the medical records sent to VA in October 2018 illustrates that the records sent contain only a June 2018 chest X-ray. However, the June 2018 chest X-ray indicates that a chest CT was completed in September 2016 and an X-ray was completed in December 2017. The Board notes that in an October 2018 VA Form 21-4142 for North Knoxville Medical Center, the Veteran indicated he received treatment at North Knoxville Medical Center from January 1, 2016 to December 30, 2018. Therefore, as the record indicates that there are outstanding private treatment records prior to the June 2018 chest X-ray and potentially thereafter, the Veteran should be given the opportunity upon remand to complete an updated VA Form 21-4142 for records from North Knoxville Medical Center. In addition, upon receipt of any VA Form 21-4142, VA should contact North Knoxville Medical Center if the updated VA Form 21-4142 contains dates of treatment prior June 2018. If any of the records requested are unavailable, VA is to clearly document the claims file to that effect and notify the Veteran of any inability to obtain the records in accordance with 38 C.F.R. § 3.159(e). Regarding the records from Summit Medical Group, the Veteran indicated in the VA Form 21-4142 that he received treatment there from January 2018 to the present. VA received records from Summit Medical Group in January 2020. A review of the records received from Summit Medical Group in January 2020 illustrates that the most recent treatment record in the file from Summit Medical Group is dated January 14, 2020. However, a September 2020 VA treatment record indicates that the Veteran may have received treatment from Summit Medical Group since January 2020. Therefore, upon remand, the Veteran should be given the opportunity to complete an updated VA Form 21-4142 for records from Summit Medical Group. 2. Entitlement to TDIU is remanded. Because a decision on the remanded claim for an increased rating for restrictive lung disease could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of the claim of entitlment to TDIU is required. The matters are REMANDED for the following actions: 1. Request that the Veteran submit a fully completed and signed VA Form 21-4142, Authorization and Consent to Release Information to VA, for Dr. A.S. at Knoxville Heart Group. Based on the Veteran’s response, attempt to procure copies of all records which have not been obtained from Knoxville Heart Group. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Request that the Veteran submit a fully completed and signed VA Form 21-4142 for North Knoxville Medical Center. Inform him that the October 2018 and January 2020 VA Form 21-4142s have expired and can no longer be used to obtain the records and that in order for VA to obtain the records he must submit a new VA Form 21-4142. Based on the Veteran’s response, attempt to procure copies of all records which have not been obtained from North Knoxville Medical Center. If the Veteran submits a VA Form 21-4142 from North Knoxville Medical Center that contains dates of treatment prior to June 2018, contact the provider and inform the entity that it did not send the Veteran’s complete medical record prior to October 2018, as is reflected in the January 28, 2020 journal entry in the February 28, 2020 VA Form 21-0820. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. Request that the Veteran submit a fully completed and signed VA Form 21-4142 for each health care provider from whom he would like VA to obtain records, to include the health care provider for whom he submitted the VA Form 21-4142 in January 2020 (Summit Medical Group). Inform him that the January 2020 VA Form 21-4142 has expired and can no longer be used to obtain the records and that in order for VA to obtain the records he must submit a new VA Form 21-4142. Based on the Veteran’s response, attempt to procure copies of all records which have not been obtained from identified treatment sources, including any records from Summit Medical Group since January 2020. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). Obtain and associate with the Veteran’s electronic record VA treatment records from September 2020 to the present. 4. After completing the development above, undertake any development necessary to adjudicate the claim for TDIU. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.