Citation Nr: 21041780
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 15-07 376
DATE: July 10, 2021

REMANDED

Entitlement to service connection for a left knee disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from August 1979 to March 1980 and from February 1993 to July 1993, with additional service in the Reserves and National Guard.

1. Entitlement to service connection for a left knee disability is remanded.

In December 2020, the Board remanded the service connection claim for a left knee disability to obtain private/VA treatment records and an addendum VA opinion.  Specifically, the Board directed the RO to request and obtain authorization regarding private treatment records for the Veteran's knee from a Dr. J. G., and then attempt to acquire those records from the physician.  However, a close review of the development at the AOJ reveals that while the RO requested authorization for the release of private records, it made no attempt to acquire the necessary private treatment records from Dr. J. G.  Here, while the Veteran did not response to the more recent request for authorization by the RO, after the last remand, the Board finds that such development was unnecessary.  A close review of the claims file show that the Veteran had already previously completed and returned the requisite VA-Form 21-4138 authorizing the VA to obtained private medical records in July 2019, as such, the RO had such authorization to proceed with requesting such private medical record, but did not do so.   

A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. at 270-71 (1998).  As prior remand orders were not complied with, and in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. In this case, the Board finds that this claim must be sent back again in order to obtain private treatment records.

The matters are REMANDED for the following action:

Make at least two (2) attempts to obtain private treatment records from Dr. J. G.  The AOJ must document all efforts to obtain these records until it is determined that the records are unavailable or that further attempts to be futile.  If any records are unavailable, this must be documented in writing in a formal finding of unavailability and associated with the claims file. 

 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Ziheng Zhu, 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.