Citation Nr: 21010288 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-08 996A DATE: February 24, 2021 REMANDED Entitlement to service connection for bilateral eye disability (claimed as poor vision) is remanded. Entitlement to service connection for an acquired psychiatric disability, to include unspecified anxiety disorder, is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to an initial compensable disability rating for migraines prior to January 30, 2013, and a disability rating in excess of 10 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 2009 until his honorable discharge in August 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and July 2016 rating decisions by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The October 2013 rating decision (1) granted service connection for left knee patellofemoral syndrome and assigned an initial disability rating of 10 percent effective September 1, 2012; (2) granted service connection for migraines with an initial noncompensable disability rating effective September 1, 2012; and (3) denied service connection for a bilateral eye disability. The July 2016 rating decision denied service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder. Following a timely notice of disagreement with respect to the January 2013 rating decision, the RO issued a March 2015 rating decision granting the Veteran an increased disability rating of 10 percent for his migraines as of January 30, 2013. These matters eventually made their way to the Board in two separate appeal streams. In May 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In December 2018, the Board remanded the claim for service connection for an acquired psychiatric disability to the RO for further development. Specifically, the Board directed the RO to obtain a VA examination on the claim, which the RO accomplished. In September 2019, the Board remanded the Veteran’s claims for (1) service connection for a bilateral eye disability, (2) for an increased rating as to his left knee disability, and (3) for an increased rating as to his migraines to the RO for further development. Specifically, the Board directed the RO to obtain a VA examination on the claims, which the RO accomplished. In July 2020, the claims were before the Board together, rather than separately, and the Board merged their respective appeal streams. The Board remanded each claim to the RO for further development, to include obtaining private medical records and to obtain VA examinations with respect to the claims for service connection for an acquired psychiatric disability and a bilateral eye disability. Unfortunately, the claims have been returned to the Board without substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, it appears that the appeal streams were not properly merged, which may have resulted in procedural confusion. The Board notes the appeal streams have now been properly merged into one active appeal stream. 1. Entitlement to service connection for bilateral eye disability (claimed as poor vision) is remanded. 2. Entitlement to service connection for an acquired psychiatric disability, to include unspecified anxiety disorder, is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. 4. Entitlement to an initial compensable disability rating for migraines prior to January 30, 2013, and a disability rating in excess of 10 percent thereafter, is remanded. As the disposition for each of these issues is the same, the Board will address them together. Following the Board’s July 2020 remand order, the RO issued a September 2020 supplemental statement of the case (SSOC) that only related to the Veteran’s claim for service connection for an acquired psychiatric disability. The case was then certified to the Board on November 17, 2020, and again on December 7, 2020. It appears that due to having two active appeal streams, two docketing letters were incorrectly sent. This procedural issue has since been corrected as stated. According to 38 C.F.R. §§ 19.3(a), (b) and 19.37(a), if the RO receives additional pertinent evidence after a statement of the case (SOC) or the most recent SSOC has been issued and before the appeal is certified to the Board of Veterans’ Appeals and the appellate record is transferred to the Board, the RO must issue a new SSOC. Furthermore, according to 38 C.F.R. § 19.31(c), when the RO develops evidence pursuant to a remand from the Board, the RO must issue a SSOC. Following the issuance of the SSOC but prior to the transfer of the case to the Board, new and pertinent evidence was associated with the Veteran’s claims file. First, as part of the Board’s July 2020 remand directives, it instructed the RO to attempt to obtain the Veteran’s private medical records from the Sapulpa Indian Health Care Center in Sapulpa, Oklahoma. It appears that the RO was in the process of trying to obtain this evidence prior to the issuance of the September 2020 SSOC. The Veteran’s claims file indicates requests were sent to the Veteran for his authorization to release these medical records and that attempts were made to obtain the medical records from the Health Center. The September SSOC did not address whether the RO was able or unable to obtain the requested information. Second, VA associated a VA-contracted medical examination and opinion with the Veteran’s claims file on November 13, 2020, relating to his claim for service connection for an acquired psychiatric disability. In addition, after transfer of the Veteran’s case to the Board, on December 18, 2020, VA associated with his claims file a VA-contracted medical examination and opinion as to his bilateral eye disability. Under 39 C.F.R. § 19.37(b), if evidence is received following the transfer of a case to the Board, the Board determines what action is required with respect to that evidence. The Board finds that the submission of various pieces of pertinent evidence, prior to an after transfer of the Veteran’s case to the Board following the July 2020 remand order, requires the RO to adjudicate the evidence in the first instance and then issue another SSOC on all claims. Moreover, the RO is required to comply with the Board’s July 2020 remand directives. Stegall, 11 Vet. App. at 271. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. If not already accomplished, send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records from the Sapulpa Indian Health Care Center in Sapulpa, Oklahoma, and to identify and authorize release of any other relevant records which may substantiate his claim. Reasonable attempts must be made to obtain relevant private medical records. This includes an initial request for such evidence from the custodian of the records, and at least one follow-up request if no response is received from the custodian of the records unless a response to the initial request indicates that the records do not exist, or a follow-up request would be futile. All requests and responses received from each source should be associated with the claims file. 3. After obtaining any additional VA and private medical records and associating them with the file, the RO is to review the Board’s July 2020 remand directives to ensure substantial compliance. Thereafter, the RO must readjudicate the Veteran’s claims on appeal and issue a supplement statement of the case as to all claims within this appeal stream. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.