Citation Nr: 21016004 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-54 556 DATE: March 19, 2021 REMAND Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a skin disability, to include benign skin growths of the torso, legs, hands, mouth, and head, is remanded. Entitlement to service connection for right eye vision impairment is remanded. Entitlement to service connection for left eye vision impairment is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right knee disability, to include arthritis, is remanded. Entitlement to service connection for a left knee disability, to include arthritis, is remanded. Entitlement to service connection for lumbar spine arthritis, separate from the service-connected lumbar spine strain disability, is remanded. Entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure, is remanded. Entitlement to a compensable rating for service-connected fracture residuals of the right metacarpalis remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar strain is remanded. Entitlement to an initial disability rating in excess of 20 percent for service-connected left shoulder strain is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1962 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A Board hearing was conducted via videoconference with the RO in Philadelphia, Pennsylvania. A transcript of this hearing is contained within the electronic claims file. See April 16, 2019, Hearing Transcript (Tr.). The Board previously addressed these claims in a September 2019 decision where it rendered unfavorable decisions as to all issues. The Veteran appealed the entire decision to the United States Court of Appeals for Veterans Claims (CAVC). The Office of the General Counsel for VA and the Veteran (collectively referred to as “the Parties”) resolved that appeal by way of a Joint Motion for Remand (JMR). With respect to the claim to reopen for entitlement to service connection for a skin condition, the Parties agreed that the Board erred when it failed to conduct an analysis to assess whether the Veteran was competent, through lay observation, to provide a diagnosis of a skin condition. See October 19, 2020, JMR at 2. With respect to all other issues, the Parties agreed that the Board failed to discuss whether compliance with 38 C.F.R. § 3.159(e) was established vis-à-vis private treatment records identified by the Veteran (the specifics will be discussed below). Id. at 2–3. By an October 27, 2020, Order, the CVAC granted the Parties’ JMR and remanded these issues back to the Board. VA’s duty to assist includes assisting the veteran in the procurement of relevant private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). A veteran, however, must provide VA with enough information to obtain the private treatment records, such as the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided; the veteran also must execute the necessary authorization for VA to obtain these records. If 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. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will request that the claimant obtain the records and provide them to VA. Id. at (e)(2). The CAVC has held that “reasonable efforts” under 38 C.F.R. § 3.159(c) generally consists of “an initial request for the records and, if the records are not received, at least one followup request.” McKinney v. McDonald, 28 Vet. App. 15, 35 (2016). If, however, VA is unable to obtain those records after making reasonable attempts, it must provide notice of that fact to the claimant; such notice must include that it is the ultimate responsibility of the claimant to obtain the records and a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits those records. 38 C.F.R. § 3.159(e)(1). By way of background, the Veteran submitted, in December 2017, a VA Form 21-4142a, identifying private treatment records. In August 2018, VA wrote to the Veteran, indicating that it had received his request to obtain the private records, but that the form was “outdated,” which required “a new, updated form” before VA could request them. VA included a new form and asked the Veteran to submit it within thirty days. The Veteran never replied. It is this situation that the Board must assess for compliance with 38 C.F.R. § 3.159(e). In the context of obtaining private treatment records, the Board does not find that VA’s actions were reasonable, as the CAVC has required. VA simply notified the Veteran that his form was outdated and that a new one was required (without further explanation). After the Veteran failed to respond, VA never followed up with the Veteran. In the Board’s view, this sufficiently is analogous as if VA had once requested the records from the provider, received no response, and discontinued efforts to obtain them. Such action does not satisfy the duty to assist. Thus, these claims require remand so that VA may make additional, reasonable attempts to secure an adequate authorization form from the Veteran to obtain the identified private treatment records. See 38 U.S.C. § 5103A; McKinney, 28 Vet. App. at 35; 38 C.F.R. §§ 3.159(c)(1), (e), 20.904(a). Because the Board cannot know the content of the discussed records, it will stay adjudication of the skin issue until it receives these records, if at all. The Board will address the Parties’ concerns regarding that issue once this appeal is returned to the Board. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send the Veteran the necessary forms to identify any private treatment he has received for his service-connected conditions and afford him the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on the Veteran’s behalf. If the Veteran identifies any records, then make reasonable attempts to obtain those records. Such attempts must be documented in the claims file. 3. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 4. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.