Citation Nr: 21013419 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-44 164 DATE: March 9, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for degenerative changes of the right knee is remanded. Entitlement to an evaluation in excess of 10 percent for chronic right knee patellar tendonitis is remanded. Entitlement to an initial higher evaluation for degenerative arthritis of the lumbar spine and ankylosing spondylitis of the thoracic spine, rated as 10 percent disabling prior to August 29, 2009, and as 20 percent disabling thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 19, 2016 is remanded. REASONS FOR REMAND The Veteran had active service from April 1986 to July 1989. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).   In February 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Video Conference hearing. A transcript of his testimony is of record. These matters were last before the Board in August 2018, when they were remanded for additional development. While a July 2020 rating decision granted TDIU effective May 19, 2016, as the Veteran was not awarded a TDIU for the entire period on appeal, the issue of entitlement to TDIU for the period prior to May 19, 2016 remains in appellate status, and the Board has jurisdiction to consider this matter. Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran has perfected appeals regarding the issues of entitlement to increased ratings for his adjustment disorder and right and left lower extremity peripheral neuropathy. He requested a Travel Board hearing regarding these issues. As the Veteran is still awaiting his requested hearing, these issues are not ripe for adjudication, and thus, will be addressed in a later decision. 1. Entitlement to an evaluation in excess of 10 percent for degenerative changes of the right knee is remanded. 2. Entitlement to an evaluation in excess of 10 percent for chronic right knee patellar tendonitis is remanded. 3. Entitlement to an initial higher evaluation for degenerative arthritis of the lumbar spine and ankylosing spondylitis of the thoracic spine, rated as 10 percent disabling prior to August 29, 2009, and as 20 percent disabling thereafter is remanded. 4. Entitlement to a TDIU prior to May 19, 2016 is remanded. The evidence indicates there may be outstanding relevant VA treatment records. VA treatment record from June 19, 2020 and April 17, 2020 indicate that the Veteran was to return for follow up appointments on July 6, 2020 and in October 2020. VA treatment records subsequent to June 19, 2020 have not been associated with the claims file. Additionally, VA treatment records from June 15, 2018 indicates that a non-VA record from February 6, 2018 was scanned; a March 7, 2018 record indicates that a March 6, 2018 non-VA record was scanned; a December 20, 2018 record indicates that November 26, 2018; June 11, 2019 record indicates that an April 4, 2019 record had been scanned; VA records from June 24, 2019 indicates that records from April 30, 2019 and May 15, 2019 had been scanned; a July 3, 2019 record indicates that a June 11, 2019 record had been scanned; an August 27, 2019 VA record indicates that an August 9, 2019 had been scanned; a January 23, 2018 record indicates that a February 12, 2017 record had been scanned; VA records from June 15, 2011 indicate that records from GemCity Home Care from December 29, 2019 through February 26, 2011 and inpatient records from January 4, 2011 through January 8, 2001 had been scanned; and a January 13, 2014 VA record indicates that a May 21, 2013 hospital record had been scanned. It does not appear that the referenced scanned records have been associated with the claims file. A remand to obtain them is required. The record also indicates that there are outstanding private treatment records. On February 14, 2020 the Veteran submitted a VA Form 21-4142 authorizing VA to obtain records from Mercy Health, Ohio Valley Hospital, and CN Behavioral Health. To date, these records have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain them. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In pertinent part, the August 2018 remand directed that scanned records that were referenced in the July 27, 2017, May 16, 2017, January 18, 2017, December 12, 2016, November 8, 2016, October 12, 2016, July 20, 2015, October 8, 2014, June 3, 2014, April 22, 2014, March 11, 2014, and September 18, 2013 VA record entries be obtained. While a January 30, 2020 records request response stated that all scanned records are available electronically, it does not appear the records have been associated with the claims file. A remand to obtain the outstanding records is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2018 remand also directed that records from the Ohio Bureau of Vocational Rehabilitation be associated with the claims file. While an August 2019 correspondence requested that the Veteran complete a VA Form 21-4142 so VA could obtain those records, the Veteran did not identify the Ohio Bureau of Vocational Rehabilitation on his February 2020 VA Form 21-4142. On remand, the Veteran should be provided another opportunity to submit the requested information or authorize VA to obtain them. He is advised that the failure to provide the above requested information could negatively affect his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified as well as records from Mercy Health, Ohio Valley Hospital, and CN Behavioral Health. In addition, obtain updated VA treatment records, the scanned records referenced in the June 15, 2018, March 7, 2018, December 20, 2018, June 11, 2019, June 24, 2019, May 15, 2019, July 3, 2019, August 27, 2019, January 23, 2018, June 15, 2011, and January 13, 2014 VA record entries, and the previously requested scanned records referenced in the July 27, 2017, May 16, 2017, January 18, 2017, December 12, 2016, November 8, 2016, October 12, 2016, July 20, 2015, October 8, 2014, June 3, 2014, April 22, 2014, March 11, 2014, and September 18, 2013 record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. After obtaining any required authorization, obtain any outstanding records of vocational rehabilitation services from the Ohio Bureau of Vocational Rehabilitation and associate such records with the claims file. If the requested records are unavailable, the Veteran should be notified of such.   3. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.