Citation Nr: 21041851
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 17-01 470
DATE: July 10, 2021

REMANDED

Entitlement to an initial disability rating higher than 10 percent for a left knee disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 2005 to November 2009.

In January 2019, the Board remanded the Veteran's claim for additional development. The case is once again before the Board.

VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). For a compensation claim, this includes "mak[ing] efforts to obtain . . . VA medical records or records of examination." 38 C.F.R. § 3.159(c)(3). VA is required to attempt to obtain such records "without consideration of their relevance." Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016).

Here, the Veteran's VA medical records show that she received treatment from South Central Texas Bone & Joint Center and Humpal Physical Therapy and Sports Medicine Center. Those records were scanned into the Veterans Health Information Systems and Technology Architecture (VistA) Imagingthe Veterans Health Administration's (VHA's) electronic health records imaging system. Unfortunately, VistA medical records are not automatically included in the record before the agency for a disability compensation claim. See Turner v. Shulkin, 29 Vet. App. 207, 217 (2018). And it does not appear that they have been added to the claims file. On remand, they should be obtained and associated with the claims file. Lang v. Wilkie, 971 F.3d 1348, 1352-55 (Fed. Cir. 2020).

The matter is REMANDED for the following action:

1. Obtain all outstanding VA and private treatment records and associate them with the claims file. This shall include the Veteran's medical records from South Central Texas Bone & Joint Center and Humpal Physical Therapy and Sports Medicine Center scanned into VistA Imaging. If the RO finds that the Veteran's VistA records do not exist or that further efforts to obtain them would be futile, the claims file must be properly documented as to the unavailability of those records.

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2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim considering any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.

 

ERIC MINE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Canedy, 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.