Citation Nr: 21011321 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 05-39 877 DATE: March 1, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for cervical muscle myositis, muscle spasm, is remanded. REASONS FOR REMAND The Veteran served on active duty for training from September 1981 to January 1982 and on active duty from February 2003 to June 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA). The April 2005 rating decision, in pertinent part, granted service connection for cervical muscle spasm, and assigned noncompensable initial evaluation, effective from June 24, 2004. During the pendency of the appeal for a higher initial rating for the Veteran’s service-connected cervical disability, a December 2006 rating decision granted a 20 percent evaluation, effective June 24, 2004. Because this higher rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran’s appeal as to this issue remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993). In January 2006, the Veteran testified at a hearing before a Decision Review Officer, the transcript of which is of record. In September 2015 and February 2017, the Board, in part, remanded for an increased initial rating for the Veteran’s cervical disability further development. Thereafter, in July 2018, the Board, in part, denied entitlement to an initial rating greater than 20 percent for cervical muscle myositis, muscle spasm. The Veteran appealed the Board’s denial of this claim to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2019, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board’s decision, and remanded the case to the Board for readjudication consistent with the JMPR. Pursuant to the JMPR and May 2019 Order, the Board remanded the claim in October 2019 for further development. It now returns for appellate review. As a final initial matter, a September 2019 rating decision found the Veteran was not competent to handle disbursement of funds. The record, including as indicated in the Veterans Benefits Management System, reflects the Agency of Original Jurisdiction has appointed the Veteran’s friend, F. C., as a fiduciary. Thus, the Board has also listed F. C. on the title page as a fiduciary. 1. Entitlement to an initial disability rating in excess of 20 percent for cervical muscle myositis, muscle spasm, is remanded. The October 2019 Board remand directed, in part, that all relevant, outstanding VA treatment records be obtained. Pursuant to the October 2019 Board remand, the Veteran’s updated VA treatment records, most recently dated on August 14, 2019, from the Arecibo Community Based Outpatient Clinic, a satellite of the San Juan VA Medical Center (MC), and part of the VA Caribbean Healthcare System, were associated with the record in November 2019. However, the March 2020 supplemental statement of the case, issued for appeal herein, referenced review of VA treatment records dated from November 17, 2006 to March 7, 2020 from the San Juan VAMC. Thus, evidence indicates that there may be outstanding relevant VA treatment records dated from August 14, 2019 to March 7, 2020. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Additionally, in light of the remand for the above matter, there are untranslated Spanish documents in the claims file, specifically a May 2013 letter from the Autoridad de Carreteras, a February 2014 letter from the Social Security Administration, an October 2013 medical record from Alberto Rodriquez Robles, M. D., as well as several documents received for the Social Security Administration and associated with the record in August 2017. On remand, these documents should be translated to English, as well as any other untranslated documents that are obtained. The matters are REMANDED for the following actions: 1. Obtain all VA treatment records for the Veteran from the VA Caribbean Healthcare System, dated from August 14, 2019 to March 7, 2020 and thereafter, and associate them with the claims file. 2. Obtain translations to English of any Spanish language documents in the claims file, including a May 2013 letter from the Autoridad de Carreteras, a February 2014 letter from the Social Security Administration, an October 2013 medical record from Alberto Rodriquez Robles, M. D., as well as several documents received for the Social Security Administration and associated with the record in August 2017. 3. Thereafter, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.