Citation Nr: 21011724 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 10-31 943A DATE: March 2, 2021 REMANDED An initial disability rating in excess of 10 percent for sinusitis status post-endoscopic surgery with polypectomy and status post-rupture of the sphenoid artery is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1985 to July 2008. The case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision. This matter has been before the Board on six prior occasions – most recently in October 2019 when the claim was remanded for additional development. It was also before the Board in January 2017, at which time an initial disability rating in excess of 10 percent was denied. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In a February 2019 decision, the Court set aside the Board’s January 2017 decision and remanded the matter for further development and adjudication. The issue is again before the Board for consideration. An initial disability rating in excess of 10 percent for sinusitis status post-endoscopic surgery with polypectomy and status post-rupture of the sphenoid artery is remanded. In its February 2019 decision, the Court determined the Board provided inadequate reasons and bases for the determination that no increased evaluation was warranted and remanded for a discussion of the Veteran’s reported symptomatology under the criteria for the applied sinusitis Diagnostic Code 6514. The Court also remanded the claim for a discussion as to whether the Veteran’s reported symptoms warranted referral for an extraschedular evaluation under 38C.F.R. § 3.321 or whether there were additional codes that could account for the Veteran’s reported symptomatology. Additionally, the Court determined the Board erred in failing to address whether there had been substantial compliance with a February 2016 remand order sufficient to fulfill the duty to assist. A remand confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West,11Vet. App.268, 271 (1998). Stegall requires only substantial, and not strict compliance, with the terms of a Board remand. D’Aries v. Peake, 22Vet. App.97 (2008). At an October 2014 VA examination, the examiner stated that the Veteran brought private records from “this year,” to the examination, specifically referencing January, June, and August 2014 medical appointments. The February 2016 Board remand instructed the RO to “undertake reasonable efforts to obtain the private treatment records referenced in the Veteran’s October 2014 VA examination report, to include records dated January 2014, June 2014, and August 2014.” Subsequently in April 2016, VA received a fax of private records from the Mercy Clinic Family Medicine in St. Robert, which included the January, June, and August 2014 treatment records, as well as additional records ranging from February 2010 to April 2015. However, the final page of the fax is numbered “P.030/066,” suggesting the fax included 36 additional pages that had not been associated with the Veteran’s claims file. After receiving the fax, VA did not take any measures to follow-up and attempt to acquire the remaining pages. While on remand in an attempt to obtain these records, subsequent development from August 2020 notes the Veteran received treatment from the Mercy Clinic Family Medicine in St. Robert and asked the Veteran to Complete and return the enclosed VA Form 21-4142. The letter goes on to separately note, “Records we received April 7, 2016 indicates there are additional records which we may not have received.” Shortly thereafter, in September 2020, VA issued a Supplemental Statement of the Case (SSOC). Finally, in October 2020, the Veteran reported he wished to have more time to gather his materials because he was unable to do so due to COVID-19. Based on the failure to make adequate, reasonable attempts to identify or secure the additional fax pages, the Board finds there has not been substantial compliance with the October 2019 remand orders. The August 2020 development does not clearly identify the private treatment records VA was attempting to obtain from the Mercy Clinic Family Medicine in St. Robert. Furthermore, considering the letter had to be mailed to and then received by the Veteran, the RO made just one attempt to obtain these records before issuing the SSOC one month to the date of the August 2020 development letter. On remand, efforts must be taken to obtain the entirety of the documents that were provided in the fax and all efforts to obtain these records must be documented within the Veteran’s file. The matters are REMANDED for the following action: 1. Take appropriate steps to obtain a complete copy of the documents from the Mercy Clinic Family Medicine in St. Robert faxed to the VA in April 2016 to include contacting the Veteran and requesting he provide an authorization for the release of all private medical records pertaining to treatment for his claimed disorder. Any subsequent development letter must adequately identify the records being sought – i.e., a complete copy of the private treatment records from the Mercy Clinic Family Medicine in St. Robert that had been faxed to VA in April 2016 but at that time were incomplete upon receipt by VA. (a.) All actions to obtain these records should be fully documented in the electronic record. The RO must make two attempts to obtain any private records identified unless the first attempt demonstrates further attempts would be futile. (b.) If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) if the records are later obtained, the claim may be readjudicated. 2. Associate with the claims file updated VA or private treatment records associated with the Veteran’s claim. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.