Citation Nr: 21010004 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 08-37 018A DATE: February 23, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from September 1987 to January 1994. In September 2018, the Board issued a decision granting service connection for neuropathy of the right lower extremity, to include as secondary to the Veteran’s service-connected herniated pulposus L4-L5, L5-S1. Thereafter, the agency of original jurisdiction (AOJ) issued a December 2018 rating decision implementing the Board’s decision and assigned a 10 percent disability evaluation effective from June 5, 2008. The Veteran responded by submitting a notice of disagreement with the disability assigned in April 2019. The case returned to the Board. In November 2019, the Board remanded the increased rating claim for issuance of a statement of the case (SOC). Thereafter, the AOJ issued a SOC in March 2020. The Veteran timely submitted a substantive appeal (VA Form 9) in April 2020. The Veteran did not request a hearing on the initial disability evaluation assigned for his right lower extremity neuropathy. It appears that the Veteran has additional claims pending before VA. In November 2019, the Board remanded claims for service connection for left lower extremity neuropathy, a left hip disability, a right hip disability, and a cervical spine disability. Following additional development, the AOJ issued a supplemental statement of the case (SSOC) in November 2020. The Veteran subsequent chose to pursue his claims for service connection under the Appeals Modernization Act (AMA) in December 2020 by requesting higher level review (HLR) of his claims. By opting into the AMA, the Veteran withdrew his pending appeal under the Legacy System. Accordingly, the Board does not have jurisdiction at this time over the issues of entitlement to service connection for left lower extremity neuropathy, a left hip disability, a right hip disability, and a cervical spine disability. These claims will be the subject of a future HLR decision under the AMA. In addition, in September 2020, the Board issued a decision granting a total disability rating due to individual unemployability (TDIU) and remanding the issues of entitlement to higher ratings for the Veteran’s service connected back and right knee disabilities. Following additional development, the AOJ issued a SSOC addressing the increased rating clams in November 2020. The Veteran responded to the SSOC by requesting HLR of the claims. Again, by opting into the AMA, the Veteran withdrew his pending appeal under the Legacy System. Accordingly, the Board does not have jurisdiction at this time over the issues of entitlement to higher ratings for the Veteran’s back and right knee disabilities. These claims will be the subject of a future HLR decision under the AMA. Duty to Assist The Board’s September 2018 remand directed the RO to obtain Social Security Administration (SSA) administrative decisions and examinations relevant to the Veteran’s claims for service connection. While SSA earnings statements have been associated with the electronic claims file, the evidence the RO was directed to obtain is not of record, and the record does not reflect that the RO has requested this evidence from SSA, even despite at least two letters from the Veteran’s representative reminding the RO that relevant SSA records have not been obtained. See Representative’s correspondence received December 12, 2019 and February 21, 2020. VA is presumed to be in constructive possession of a Federal department or agency records and is therefore required to make as many requests as are necessary to obtain relevant records from such agencies. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see Bell v. Derwinski, 2 Vet. App. 611, 612-613 (1992). Here, despite the Board’s September 2018 directive to obtain SSA administrative decisions and examinations relevant to the Veteran, the record does not reflect that the RO took any action to request these records from SSA. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998) Additionally, the record does not reflect that the Veteran has been afforded a VA examination to evaluate the severity of his service-connected right lower extremity radiculopathy with specific findings consistent with the rating criteria listed under 38 C.F.R. § 4.124a, Diagnostic Code 8720. The matter is REMANDED for the following action: 1. Ensure that all outstanding private and VA treatment records are associated with the claims file. 2. Request from the Social Security Administration (SSA) the administrative decisions, examinations, and medical records for the Veteran, and associate all such evidence received with the electronic claims file. Document all efforts to obtain SSA records including all replies from SSA. Should it be determined that all or part of the requested SSA records are unavailable, document such finding(s) in the claims file and notify the Veteran and his representative. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected right lower extremity radiculopathy, including all NEUROLOGICAL manifestations. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to elicit from the Veteran all signs and symptoms of his right lower extremity radiculopathy, including all neurological manifestations, from the commencement of the rating period on appeal. In doing so, the examiner is requested to consider the Veteran’s lay statements describing observable symptoms. The examiner should provide a complete rationale for any opinions provided. 4. Thereafter, readjudicate the remanded claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell, Associate Attorney 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.