Citation Nr: 21011643 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 10-44 328A DATE: March 2, 2021 REMANDED Entitlement to an increased initial rating for a left knee disability, currently rated as noncompensable from February 1, 1998 to September 19, 2004 and as 10 percent disabling from September 18, 2008, is remanded. Entitlement to an increased initial rating for a right knee disability, currently rated as noncompensable from February 1, 1998 to September 19, 2004 and as 10 percent disabling from September 18, 2008, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from December 1977 to January 1998 and from September 2004 to September 2008. This matter before the Board of Veterans Appeals (Board) is on appeal from June 1998 and November 2009 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2000, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of this hearing is of record. In January 2021, the Veteran was contacted by letter and offered the opportunity to provide testimony before a different VLJ. She did not request an additional hearing. In March 2001,the Board remanded the claims of entitlement to increased initial ratings for left and right knee disabilities for additional medical evaluation. A May 2016 Board decision, noting these claims had not been properly returned to the Board, referred the issues to the RO for appropriate action. Subsequently, the claims were returned to the Board. In February 2018 and December 2019, the Board remanded the claims for additional development. 1. Entitlement to a compensable rating for right knee patellofemoral pain syndrome prior to September 18, 2008, and in excess of 10 percent thereafter is remanded. 2. Entitlement to a compensable rating for left knee patellofemoral pain syndrome prior to September 18, 2008, and in excess of 10 percent thereafter is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Under the duty to assist, VA must obtain VA authorized treatment records. See 38 C.F.R. § 3.159(c)(3); see also Sullivan v. McDonald, 815 F.3d 786, 793 (2016) (finding that the regulation extends the duty to assist to obtain “sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance.”) Treatment records from the Richmond VAMC include December 2016 and May 2017 VA Choice Approvals for physical therapy for knee pain. Additional Richmond VAMC treatment notes from February 2017, April 2017, May 2017, August 2017, September 2017 and November 2017 reference scanned private physical therapy records. Some of these notes refer to records from Hilltop Physical Therapy. However, the scanned private records are not visible for review within the VA treatment records currently associated with the claims file. In December 2019, the Board remanded these claims and directed the RO to update VA Choice treatment records so that they were visible and available for review. The file is now returned for additional appellate review, but the VA Choice treatment records are not yet visible within the claims file. There is no indication of additional efforts to obtain, rescan, or otherwise include the VA Choice private physical therapy records within the claims file. Accordingly, there has not been substantial compliance with the Board’s directives. See Stegall, supra. The Board also notes additional VA Choice referrals from March 2016 (shoulder pain), March 2017 (dental), September 2017 (optometry), and January 2018 (low back sciatica) are indicated in the Richmond VAMC treatment records. The records of these VA authorized treatments are not included in the claims file. Additional efforts are required to associate all outstanding VA approved private treatment records with the claims file. See 38 C.F.R. § 3.159(c)(3); see also Sullivan v. McDonald, 815 F.3d 786, 793 (2016) (Continued on the next page)   The matters are REMANDED for the following action: Obtain and associate with the claims file all VA treatment records and all VA authorized private medical treatment records. The records to be obtained include those indicated in the Richmond VAMC treatment records from December 2016 and May 2017 (VA Choice approval for knee physical therapy) and from February 2017, April 2017, May 2017, August 2017, September 2017 and November 2017 (noting scanned physical therapy records, including records from Hilltop Physical Therapy). Additional records of all other private treatment authorized by VA, including VA Choice referrals from the Richmond VAMC in March 2016 (shoulder), March 2017 (dental), September 2017 (optometry), and January 2018(low back) should also be obtained. All records obtained must be included in the claims file so that they are visible for review. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.