Citation Nr: 21031123 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-15 018 DATE: May 20, 2021 REMANDED Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for status post neck surgery, C2-C7 with pneumonia and numbness in bilateral upper and lower extremities is remanded. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to July 1982. These matters are on appeal before the Board of Veterans Appeals (Board) from a March 2014 Rating Decision (PTSD) and a September 2014 Rating Decision (status post neck surgery) of a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in September 2018, at which time they were remanded for additional development. At that time, the Board addressed the issue of "entitlement to an initial rating in excess of 50 percent for an unspecified anxiety disorder (claimed as posttraumatic stress disorder (PTSD)." However, in an August 2020 Rating Decision, the RO granted entitlement to service connection for PTSD effective March 12, 2012, and recharacterized the Veteran's service-connected disability as "PTSD (previously diagnosed as unspecified anxiety disorder)." A 70 percent disability rating was then assigned for this disability effective March 12, 2012. As such, the issue caption above has been changed accordingly. The Veteran seeks entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for status post neck surgery, C2-C7 with pneumonia and numbness in the bilateral upper and lower extremities; as well as entitlement to a higher initial rating for PTSD. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Board emphasizes that these claims were last adjudicated by the Agency of Original Jurisdiction (AOJ) in a Supplemental Statement of the Case issued in August 2020. Additional evidence has been added to the claims file since that time. This evidence includes VA treatment records dated as recently as October 2020 which discussed the Veteran needing a new consultation on recent magnetic resonance imaging (MRI), at which time she was informed that she had a screw out from her cervical spine fusion. Additionally, VA obtained the Veteran's Social Security Administration (SSA) records and associated them with the claims file in October 2020. Significantly, these SSA records discussed the nature and severity of the Veteran's cervical degenerative disc disease status post surgical fusion, anxiety disorder, and affective disorder. As such, these records are relevant to the issues currently before the Board. Although the automatic waiver provision applies to this case as the substantive appeal was filed in 2016, that provision is limited to evidence submitted by the claimant. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). In correspondence dated in March 2021, VA informed the Veteran that additional evidence was received since issuance of the August 2020 Supplemental Statement of the Case; in an April 2021 response, the Veteran requested that her case be remanded back to the AOJ for review of this additional evidence. As this evidence is pertinent to the issues on appeal and includes documents generated and/or obtained by VA, a remand is required for AOJ consideration of the records added to the claims file since issuance of the August 2020 Supplemental Statement of the Case. Additionally, in February 2021, the Veteran submitted private treatment records dated in November 2020 from a private healthcare provider. Although the precise origin of these treatment records (which indicate that the Veteran was a new patient seeking a determination as to whether a fractured screw at the vertebrae necessitated neurosurgical intervention) is unclear, it appears that these records are from the consultation at Virginia Brain & Spine Center in Winchester, Virginia, referenced in her September 2020 VA treatment records. On remand, the RO should contact the Veteran and ask that she complete and return the necessary authorization (VA Form 21-4142) for VA to obtain complete private treatment records from Virginia Brain & Spine Center in Winchester, Virginia. VA is required to make reasonable efforts to obtain all "relevant" records, including private treatment records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following action: 1. Contact the Veteran and request that she complete and submit to VA a signed authorization for disclosure of medical records to VA (VA Form 21-4142) for each private medical health care provider from whom he has received treatment for the disabilities at issue on appeal, to include the Virginia Brain & Spine Center in Winchester, Virginia. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in her possession. 2. Readjudicate the claims on appeal considering the newly-submitted evidence added to the record since the August 2020 Supplemental Statement of the Case. If any claim remains denied, then a Supplemental Statement of the Case must be provided to the Veteran and her representative. After the Veteran has had an adequate opportunity to respond, then the appeal must be returned to the Board for appellate review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.