Citation Nr: 22018022 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-58 614 DATE: March 28, 2022 THE ISSUES 1. Entitlement to an increased evaluation in excess of 0 percent disabling for asthma prior to April 6, 2017, in excess of 10 percent from April 6, 2017, to December 13, 2019, and in excess of 30 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REMANDED Entitlement to an increased evaluation in excess of 0 percent disabling for asthma prior to April 6, 2017, in excess of 10 percent from April 6, 2017, to December 13, 2019, and in excess of 30 percent thereafter is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). These matter, along with the issue of entitlement to service connection for status post bilateral spontaneous pneumothorax, were previously before the Board in October 2019, at which time they were remanded in order to obtain potentially outstanding treatment records. In a subsequent June 2020 rating decision, the RO granted service connection for status post bilateral spontaneous pneumothorax, as such, that matter is no longer before the Board. Additionally, the RO in its June 2020 rating decision increased the Veteran's disability rating for asthma to 30 percent effective December 13, 2019. As this does not represent a full grant of benefits sought, the issue remains on appeal. While the Board regrets the additional delay, we find there has not been substantial compliance with the October 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased evaluation in excess of 0 percent disabling for asthma prior to April 6, 2017, in excess of 10 percent from April 6, 2017, to December 13, 2019, and in excess of 30 percent thereafter is remanded. In September 2013, the Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information to the VA. On that form, the Veteran indicated that he received private medical treatment for a variety of conditions, including asthma, from a private physician, Dr. C.M.R. After review of the claims file, the Board found in its October 2019 decision that the records of the Veteran's treatment have not been obtained from this provider. The Board also found that there was no record in the claims file of VA notifying the Veteran of its inability to obtain those records, as required under 38 C.F.R. § 3.159(e). The Board's review of the claims file revealed that on April 1, 2014, VA sent the Veteran a notice that records were requested from "MEDICAL RECORDS DEPARTMENT," but neither this notice, nor any others in the claims file, indicate that VA was unable to obtain the records from the office of Dr. C.M.R. See 38 C.F.R. § 3.159(e)(i). Since the Veteran stated that Dr. C.M.R. treated him for his asthma, the Board found that these records should be sought again, and if possible, they should be obtained and associated with the Veteran's claims file before the Board adjudicated this case. The Board instructed that if VA as unable to obtain those records, the Veteran should be notified as required under 38 C.F.R. § 3.159. Upon remand, the Veteran was sent the notice of the records being sought including an attached VA Form 21-4142. The Veteran subsequently returned the form and indicated that Dr. C.M.R. treated him from June 2009 to July 2016, but that the physician was affiliated with a VA medical facility. In a December 2019 correspondence, VA indicated that the medical records request was rejected because the provider was a non-private entity. Upon review of the claims file, the Board finds that there are VA treatment records from Dr. C.M.R., but that these records date only from 2013. Therefore, it appears there are potentially outstanding VA treatment records not associated with the claims file. Additionally, the Veteran was not sent notice of VA's inability to obtain such records as required under 38 C.F.R. § 3.159. Therefore, the Board finds that an additional remand is necessary in order to obtain potentially outstanding VA treatment records and to provide the Veteran notice of any inability to locate such. 2. Entitlement to a TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the other issues listed and discussed above. Thus, it too must be remanded pending completion of the development discussed above. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA treatment records. Specifically, the RO should seek records from Dr. C.M.R. of the Cape May VA medical facility, prior to January 2013. 2. If the AOJ is unable to locate such records, the AOJ must notify the Veteran of (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159 (e). The Veteran must then be given an opportunity to respond. 3. Complete the above development and any additional development that is deemed warranted. Then readjudicate the claims on appeal and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.