Citation Nr: 21024594 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-02 383 DATE: April 23, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for service-connected cervical spine disability prior to November 23, 2020, and from 30 percent thereafter is remanded. Entitlement to a total disability based on individual unemployability (TDIU) prior to July 21, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to January 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2016 hearing. These issues were previously before the Board in April 2018 and April 2019, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand in a June 2019 rating decision, the RO effectuated the Board’s April 2019 grant of an evaluation of 50 percent for service-connected headaches. And in a December 2020 rating decision, the RO granted service connection for left upper extremity radiculopathy. This represents a full grant of the benefits sought, and these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to an evaluation in excess of 20 percent for service-connected cervical spine disability prior to November 23, 2020, and from 30 percent thereafter is remanded. Remand is required for substantial compliance with the April 2019 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The April 2019 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA and private treatment records (PTRs), and to provide the Veteran with new VA examinations. Additional VA treatment records were successfully added to the claims folder in September and October 2020. The Veteran underwent VA examinations in January and December 2020. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including VA medical records. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). VA’s duty to assist claimants to obtain evidence needed to substantiate a claim also includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO sent one letter to the Veteran in October 2019 asking that he identify and authorize for release any PTRs. The Veteran did not reply to this letter, and the RO did not make any further attempts. However, multiple VA treatment records following this letter identify that the Veteran received medical treatment at private facilities after this letter was sent. A November 2019 entry indicates that the Veteran received treatment from St. Elizabeth, and that these records were scanned into Vista imaging. A July 2020 entry notes records from St. Vincent were also scanned into Vista imaging. Numerous other entries also indicate outside treatment records scanned into Vista imaging, including from United Healthcare. These records are not part of the Veteran’s claims file, and the Board does not have access to Vista imaging, so these records will need to be added to the Veteran’s claims file separately. It is also unclear whether those records scanned into Vista imaging reflect the full extent of records from those facilities, so the Veteran should also be provided another opportunity to identify and authorize those PTRs for release. Accordingly, remand is required to obtain missing medical records. Entitlement to a TDIU prior to July 21, 2015 is remanded. A determination with respect to the increased rating claim for the service-connected cervical spine disability may have an impact upon consideration of the issue of entitlement to TDIU on appeal; the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). As such, Board consideration of the merits of the Veteran’s TDIU claim is deferred. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, specifically all outside records scanned into Vista imaging. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, specifically from St. Vincent, St. Elizabeth, and United Healthcare. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. K. MILLIKAN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.