Citation Nr: 21027725
Decision Date: 05/06/21	Archive Date: 05/06/21

DOCKET NO. 13-16 189
DATE: May 6, 2021

REMANDED

Entitlement to an initial compensable rating for fibroids is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1997 to April 2009. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

This case was most recently before the Board in November 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for further appellate review.

A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Based on that duty to assist, the Board remanded the Veteran's appeal in November 2020, and directed that the RO assist the Veteran in obtaining any outstanding VA medical records and private records. 

The RO associated additional VA records with the claims file prior to issuance of the March 2021 supplemental statement of the case. However, the RO only sent one request to the Veteran for information regarding private providers. The VA must make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Reasonable efforts to obtain records not in the custody of a Federal department or agency generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1).

In this instance, the RO did not make a follow-up request for information regarding private medical providers and authorization for release of information, and by not sending a follow-up request the RO did not fulfill the duty to assist. As such, the RO did not meet the mandates of Stegall.

Accordingly, remand is warranted to perform the necessary reasonable efforts, as required by the duty to assist, to ensure that all relevant private medical records are associated with the Veteran's claims file. 

The matters are REMANDED for the following action:

1. The AOJ must assist the Veteran in procuring any outstanding available private medical records that have not yet been associated with the claims file.  

The AOJ must provide the Veteran with the proper authorization forms for release of information and ask the Veteran to complete the forms in order that VA may assist the Veteran in obtaining the appropriate records described above. The AOJ must provide the Veteran with the appropriate period to complete and return the authorization forms. If the initial request for such information is not responded to the AOJ must issue a follow-up request. 

Upon receipt of authorization by the Veteran to obtain the relevant medical records, the AOJ must make reasonable efforts, at least two (2) attempts, to obtain the relevant records. All attempts to secure this evidence must be documented in the claims file, and if, after exhausting efforts to obtain the named records, they are not able to be secured and it is determined that they do not exist or that further attempts would be futile, the AOJ must provide the required notice and opportunity to respond to the Veteran and his representative.

2. After completing the requested actions, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and her representative and afford them an opportunity to respond. Then, return the case to the Board, if in order.

 

 

MAX P. SALAZAR, JR.

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Temple, 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.