Citation Nr: 21028575 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-25 248 DATE: May 11, 2021 REMANDED Entitlement to a disability rating in excess of 50 percent for chronic headaches is remanded. Entitlement to a disability rating in excess of 10 percent for hypertension is remanded. Entitlement to a disability rating in excess of 10 percent for lumbar strain is remanded. Entitlement to a disability rating in excess of 20 percent for status post anterior cervical fusion with multi-level neural foraminal narrowing is remanded. Entitlement to service connection for radiculopathy, right upper extremity is remanded. Entitlement to service connection for radiculopathy, left upper extremity is remanded. Entitlement to service connection for radiculopathy, right lower extremity is remanded. Entitlement to service connection for radiculopathy, left lower extremity is remanded. REASONS FOR REMAND The Veteran had active service in the Army from September 1978 to August 1985. These matters arise from an appeal of a December 2011 rating by a Department of Veterans Affairs (VA) Regional Office (RO) that assigned an initial rating of 10 percent for status post anterior cervical fusion with multi-level neural foraminal narrowing (cervical spine); granted an increased rating of 30 percent for chronic headaches; denied a disability rating in excess of 10 percent for lumbar strain; and denied a disability rating in excess of 10 percent for hypertension. The Veteran timely initiated and perfected an appeal, seeking higher disability ratings for his cervical spine, chronic headaches, lumbar strain, and hypertension. In March 2019 the Board of Veterans' Appeals (Board) remanded the Veteran's cervical spine, chronic headaches, lumbar strain, and hypertension claims for further development. In November 2020, the Board found that claims for bilateral radiculopathy of the upper and lower extremities were implicit in the Veteran's claims for increased ratings for his cervical spine and lumbar spine disabilities. 38 C.F.R. § 4.71a. See also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Bradley v. Peake, 22 Vet. App. 280 (2008); AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board then remanded the Veteran's cervical spine, chronic headaches, lumbar strain, hypertension, and bilateral upper and lower extremity radiculopathy claims for further development. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has not been substantial compliance with its November 2020 remand directives. The Veteran filed his initial claim in March 2010; in August 2010 the Veteran filed several VA Forms 21-4142, "Authorization and Consent To Release Information to the Department of Veterans Affairs." In pertinent part, the Veteran identified Moody Air Force Base (AFB) as a location where he had received treatment for his claimed disabilities. In the case of a claim for disability compensation, VA has a duty to make reasonable efforts to obtain any records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A (c). Whenever VA attempts to obtain records from a Federal department or agency under § 5103A (c), the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. In February 2011, the RO informed the Veteran that he had not adequately identified Moody AFB, and that therefore the RO would not assist him in obtaining any records from that facility. In November 2020 the Board found that this refusal violated VA's duty to assist under § 5103A (c) and remanded the Veteran's claims to obtain records from Moody AFB, as well as two private treating providers: Sunshine Spine & Pain, P.A. (Sunshine Spine) and Absolute Medical Clinic (Absolute). Medical records from Sunshine Spine and Absolute were associated with the claims file in December 2020. However, no records from Moody AFB have yet been obtained and associated with the claims file. Further, the Board finds that the RO's efforts to obtain the purported records from Moody AFB do not satisfy VA's duty to assist under 38 U.S.C. § 5103A (c). The claims file includes two separate December 2020 Medical Records Request Reject notices from a private medical record (PMR) contractor, informing the RO that they were unable to obtain medical records from Moody AFB as the purported medical provider is non-private. VA utilizes the PMR Retrieval Program to assist Veterans in obtaining private medical records that may support their claims for benefits. Critically, the purpose of the PMR Retrieval Program, carried out by PMR contractors, is to obtain medical records from private healthcare providers. There is no evidence in the claims file to suggest that Moody Air Force Base constitutes a private healthcare provider. Accordingly, entries in the file reflecting the inability of PMR contractors to obtain records from that facility to not constitute evidence that such records do not exist, or that further attempts to obtain such records would be futile. The record does not reflect any other attempts by the RO to obtain the purported medical records from Moody AFB. Accordingly, the Veteran's cervical spine, chronic headaches, lumbar strain, hypertension, and bilateral upper and lower extremity radiculopathy claims should be remanded for the RO to make efforts to obtain the purported medical records identified by the Veteran at Moody AFB that are consistent with VA's duty to assist under 38 U.S.C. § 5103A. The matters are REMANDED for the following action: 1. Pursuant to 38 C.F.R. § 3.159(c)(2), attempt to obtain all medical treatment records for the Veteran at Moody AFB based on the VA Form 21-4142 submitted on August 30, 2010. Document all efforts to obtain these records. Contact the Veteran, if needed, to facilitate this effort, including a request to submit an updated VA Form 21-4142 that indicates his dates of treatment. 2. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.