Citation Nr: 21016000 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-18 801A DATE: March 19, 2021 REMANDED An initial disability rating for degenerative joint disease, right knee, rated as 10 percent disabling prior to June 26, 2014, and 20 percent thereafter is remanded. An initial disability rating for degenerative joint disease, left knee , rated as 10 percent disabling prior to June 26, 2014, and 20 percent thereafter is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REFERRED Service connection for an acquired psychiatric disability, to include depressive disorder, as secondary to service-connected bilateral knee disabilities was reasonably raised by the Veteran in his December 2020 correspondence with VA, and his VA medical records indicate psychiatric treatment and a diagnosis of depressive disorder. Therefore, this issue is referred to the agency of original jurisdiction for appropriate action, to include providing information to the Veteran on how to file a claim and/or perfect an appeal. 38 C.F.R. § 20.904(b); see Bailey v. Wilkie, Vet. App., No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13, 2021 WL 45679 (Jan. 6, 2021) (“VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.”). REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1975 until his honorable discharge in October 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Decatur, Georgia, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In January 2020, the Board remanded the case to the RO for further development, to include obtaining outstanding VA medical records as of February 2017 and to obtain a new VA medical examination as to the Veteran’s service-connected bilateral knee disabilities. While the RO accomplished these directives, the Board finds that remand is again necessary to comply with VA’s duties to notify and assist. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As part of VA’s duty to notify, “[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records.” 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(2). Once VA is put on notice of the existence of specific treatment records, section 3.159(e)(2) requires VA to request that the claimant provide a release for those records and, if the claimant does not do so, VA must request that the claimant obtain those specific records and provide them to VA. See Wise v. Shinseki, 26 Vet. App. 517, 529 (2014). As part of VA’s duty to assist, VA is required to attempt to obtain VA medical records “without consideration of their relevance.” Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016); see Turner v. Shulkin, 29 Vet. App. 207, 218 (2018), abrogated by Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). VA’s duty to assist also includes obtaining relevant records not in the custody of a Federal department or agency, such as private medical care providers. 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). First, in a February 15, 2017, correspondence with VA, the Veteran indicated he was treated at Emory University Orthopaedic Center in Atlanta, Georgia, for his knees. A January 13, 2017, VA pain consult note indicates the Veteran received such treatment. The Board finds that the Veteran was not asked to authorize release of these treatment records, and they are not of record at this time. As they appear relevant to the Veteran’s claims, VA must attempt to obtain them. Second, in a September 10, 2019, correspondence with VA, the Veteran stated that he was receiving physical therapy and water therapy for both of his knees. On January 27, 2021, the Veteran submitted a private physical therapy record from Apex Therapy with an evaluation date of October 27, 2020. The medical record documented the Veteran’s flexion and extension of his bilateral knees. The Board finds no evidence the RO made any attempts to notify the Veteran that these records were relevant or that reasonable attempts were made to obtain these records. The Board finds that the Veteran’s physical therapy records are reasonably relevant to his claim and attempts should be made to obtain them. Third, the Veteran submitted VA medical records from Lee County VA Clinic from October 2016 through January 2019. VA only made efforts to obtain the Veteran’s records from Lee County VA Clinic between July 2020 and November 2020. Thus, all records from the clinic must be sought. Finally, the Veteran submitted a November 2020 VA radiology report as to his knees. The Veteran’s VA medical records associated with his claims file do not contain this radiology report. Instead, there is a reference within his VA medical records that the report was available by CD. See November 20, 2020 VA Addendum Note. VA has a duty to obtain all of the Veteran’s VA medical records, even when he submits them on his own because there may be additional documents. 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, to include: (a.) All medical records from Lee County VA Clinic; (b.) All medical records associated with the Veteran’s November 20, 2020 MRI study. The RO is directed to the November 20, 2020, VA Addendum by Dr. Suchodolski that notes a CD exists relating to the Veteran’s MRI; (c.) Any and all outstanding VA medical records. 2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records from: (a.) Emory University Medical Center in Atlanta, Georgia; (b.) Emory Orthopaedics & Spine Center in Atlanta, Georgia; (c.) Apex Therapy; (d.) Any other private treatment received for his service-connected knees or in relation to his claim for TDIU. (Continued on the next page)   Reasonable attempts must be made to obtain relevant private medical records, and the RO should document all attempts and responses. 38 U.S.C. § 5013A(b)(2)(B); 38 C.F.R. § 3.159(c)(1). 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.