Citation Nr: 22014398 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-04 925 DATE: March 12, 2022 REMANDED Entitlement to service connection for a disability manifested by chronic fainting spells, to include panhypopituitarism, to include as due to removal of the pituitary gland, is remanded. Entitlement to an initial compensable rating for chronic left foot sprain prior to November 17, 2021, and in excess of 10 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 1967 to December 1969, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In May 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in August 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its remand, the Board directed the AOJ to ask the Veteran to provide a release for relevant records of private treatment from a Dr. G. and to identify and provide release(s) for any other private care providers who had treated him for the issues on appeal. It further directed the AOJ to obtain updated VA treatment records and to afford him a new VA examination in connection with his claim for an increased rating for his service-connected chronic left foot sprain, to include eliciting information regarding functional loss due to flare-ups and repeated use over time, and to provide a retrospective opinion with respect to the severity of the Veteran's chronic left foot sprain. In September 2021, the AOJ obtained updated VA treatment records. In November 2021, it afforded the Veteran a new VA examination that substantially complies with the Board's August 2021 remand directives. While the claims file indicates that the AOJ also undertook some efforts to assist the Veteran in obtaining private treatment records from Dr. G., the Board finds that the AOJ did not substantially comply with the remand directives in that specific regard. As such, although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. See Stegall v. West, 11 Vet. App. 268 (1998). As a final introductory matter, the Board notes that in a January 2022 rating decision, the AOJ increased the Veteran's rating for his chronic left foot sprain from 0 (zero) to 10 percent, effective November 17, 2021. The issue on appeal has been recharacterized accordingly, as set forth above. 1. Entitlement to service connection for a disability manifested by chronic fainting spells, to include panhypopituitarism, to include as due to removal of the pituitary gland, is remanded. 2. Entitlement to an initial compensable rating for chronic left foot sprain prior to November 17, 2021, and in excess of 10 percent thereafter, is remanded. In its August 2021 remand, the Board noted that the claims file indicated that there were missing private treatment records relevant to both of the issues on appeal. Specifically, the Board noted that at a May 2021 Board hearing, the Veteran testified that a Dr. G. performed a pituitary gland removal operation in 1997, and further indicated that Dr. G. still prescribed medication for the problem. The Board further noted that the Veteran testified that he currently received treatment from Dr. G. for his left foot disability. Inasmuch as the record indicated that Dr. G. treated the Veteran for both issues on appeal, and the claims file did not contain any of his records, the Board directed the AOJ to assist the Veteran in obtaining Dr. G.'s private treatment records. It also specifically directed the AOJ to notify the Veteran and his representative, if any, if the records sought were not available. VA regulations require that VA make reasonable efforts to obtain relevant records not in the custody of a federal department or agency, to include records from private medical care providers. 38 C.F.R. § 3.159(c)(1). Regulations further provide that such 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. If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source. Id. The Board also notes that claimants must fully cooperate with VA's reasonable efforts to obtain such records, and that the claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records, the approximate time frame covered by the records, and in the case of medical treatment records, the condition for which treatment was provided. In the present case, in September 2021, the AOJ sent the Veteran a letter asking him to provide an appropriate release for records from Dr. G., and to identify and provide an appropriate release(s) for records from any other private care providers who had treated him for the issues on appeal. The AOJ's initial letter was returned as undeliverable in November 2021, but review of the claims file indicates that the Veteran changed his address with VA in December 2021. The AOJ sent the Veteran a second letter regarding private treatment records that was delivered to the Veteran in December 2021. In early January 2022, the Veteran responded to the AOJ's letter and provided an appropriate release, indicating that the provider in question was J.G., M.D., and that he treated the Veteran at Regional Hospital in Anchorage, Alaska, from June 1997 to the present. The AOJ subsequently used the release provided by the Veteran to request Dr. G.'s records. Dr. G.'s office responded in late January 2022, however, that it was unable to comply with the AOJ's request for records because the request was received at a location with multiple facilities, and that to process the request, the provider needed the specific name of the facility at which the Veteran was seen. It asked the AOJ to resubmit the request with the correct facility name. In response, the claims file indicates that the AOJ attempted to call the provider but was unable to leave a message due to the hold time, and that the request was subsequently closed out. There is no indication in the claims file that the AOJ undertook any further efforts to obtain Dr. G.'s records. Nor did it inform the Veteran that he did not provide sufficient information to assist the AOJ in obtaining Dr. G.'s records, or notify him or his representative that the records sought were otherwise not available. In light of the above, the Board finds that the AOJ did not substantially comply with its August 2021 remand directives regarding private treatment records. The Veteran has identified Dr. G., the facility at which he was treated by Dr. G., the conditions for which he was treated, and the date range of treatment. The Veteran could not have known that the information he provided in the January 2022 release was insufficient to properly identify the records. At a minimum, the AOJ should have informed him of the problem and asked him to provide additional details regarding records from Dr. G., as that provider requested. The AOJ should also have notified the Veteran and his representative that the records were unavailable, as specifically instructed by the Board. Under the circumstances, another remand to assist the Veteran obtaining the outstanding records is warranted. See Stegall, supra. Updated records of any VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). These matters are REMANDED for the following action: 1. Contact the Veteran and inform him that Dr. G.'s office was unable to comply with VA's request for a copy of his records because it needs a more specific facility name due to there being multiple facilities at the location he previously identified. Request that he provide the specific name of the hospital and/or treatment facility where he received treatment from Dr. G. from June 1997 to the present, and if necessary, to provide another release for relevant records of treatment from Dr. G. If he provides the necessary information and/or additional release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified and offered an opportunity to submit the records themselves. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. If, as a result of the development ordered in the preceding paragraphs, new evidence is obtained that has a bearing on the outcome of the Veteran's claim for an increased rating for chronic left foot sprain, arrange to provide the record on appeal to the VA examiner who examined the Veteran in November 2021 for an addendum opinion. The examiner should review any new records and offer an opinion as to whether any of the records impact the findings and/or opinions he offered in November 2021, and if so, to what extent. If the November 2021 VA examiner is no longer employed by VA or is otherwise unable to provide the requested information, arrange to obtain the information from another qualified examiner. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.