Citation Nr: 22018404 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-13 982 DATE: March 29, 2022 REMANDED Entitlement to an evaluation in excess of 40 percent for service-connected lumbar spine degenerative disc disease (lumbar spine disability) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2004 to September 2004 and from October 2004 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. This appeal has been remanded three times in October 2019, September 2020, and April 2021. In the October 2019 remand, the Board directed the RO to attempt to obtain medical records from Baptist Hospital, for the Veteran to submit a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability, and to attempt to obtain IRS records from the Veteran. See BVA Decision (October 2019). The RO received notice from the Baptist Hospital that there were no medical records. See Third Party Correspondence (November 2019). In response to the Board remand, the Veteran submitted Social Security Administration (SSA) records that showed his earnings for 2015. See Income and Tax Statements (November 2019). The RO requested that the Veteran submit VA 21-4192 and IRS tax returns from 2011 through 2019. See Subsequent Development Letter (December 2019). The Veteran did not respond. In a September 2020 remand, the Board directed the RO to undertake the following actions: obtain all medical records scanned into Vista Imaging, to include records dated on November 22, 2019, and December 17, 2017; obtain VA treatment records dated from November 2019 to the present; and request authorization from the Veteran for all non-VA medical providers seen for symptoms of his lumbar spine disability, to include any VA Choice medical providers. See BVA Decision (September 2020). VA treatment records were obtained. See CAPRI (December 2020). The RO requested that the Veteran submit authorizations for private providers. See Subsequent Development Letter (October 2020). In November 2020, the RO again requested authorizations for private providers, expressly noting that the request included authorizations for VA Choice medical providers. See Subsequent Development Letter (November 2020). The Veteran then submitted authorizations for Rush Pain Management, Premier Medical Group, and Baptist Memorial. See VA 21-4142 Authorization for Release of Information (December 2020). Baptist Memorial notified VA it had no records from the Veteran. See VA 21-0820 Report of General Information (December 2020). Records from Rush Pain Management were obtained. See Medical Treatment Record Non-Government Facility (December 2020). Premier Medical Group informed VA there were no records. See VA 21-0820 Report of General Information (December 2020). But non-VA medical records scanned into Vista Imaging were not obtained. See CAPRI (December 2020); BVA Decision (April 2021). In the April 2021 remand, the Board directed the RO to undertake the following actions: obtain VA treatment records dated from June 2017 to the present; obtain records dated on November 22, 2019, and December 17, 2017, that were scanned into Vista Imaging; obtain authorizations from the Veteran for medical records from Premier Medical Group and for Baptist Memorial; obtain SSA records; and obtain a VA examination. See BVA Remand (April 2021). VA treatment records and SSA records were obtained. See CAPRI (2021); Medical Treatment Records Furnished by SSA (August 2021). The RO sent a request to the Veteran for authorizations to obtain records from Premier Medical Group and Baptist Memorial. See Subsequent Development Letter (April 2021); Subsequent Development Letter (June 2021). In response, the Veteran submitted authorizations for Rush Health Systems and Baptist Memorial. See VA 21-4142 Authorization for Release of Information (July 2021). Records from Rush were obtained. See Medical Treatment Record Non-Government Facility (July 2021). The Veteran did not submit any authorization for Premier Medical Group. The RO attempted to obtain records from Baptist Hospital but was told by the provider that a fee was required. See VA 27-0820 Report of General Information (July 2021). The RO thus closed the request, but without notice to the Veteran. As discussed further below, the Board finds non-compliance with specific remand provisions regarding the VA examination and opinions and obtaining records scanned into Vista Imaging. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an evaluation in excess of 40 percent for service-connected lumbar spine disability is remanded. The Veteran contends that he is entitled to an increased evaluation due to back pain that prevents him from getting out of bed 2 weeks per month and that laying down and resting was recommended. See Hearing Transcript (November 2018). The Board finds that remand is warranted to comply with prior remand directives and to comply with the duty to assist. First, remand is required to provide required notice to the Veteran. If VA makes reasonable efforts to obtain relevant non-Federal records but is unable to obtain them, or after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. See 38 C.F.R. § 3.159(e). In the April 2021 remand, the Board requested that the RO obtain authorizations from the Veteran for all private providers. See BVA Remand (April 2021). Those authorizations were provided by the Veteran. See VA 21-4142 Authorization for Release of Information (July 2021). The RO attempted to obtain records from Baptist Hospital but were told that a fee was required. See VA 27-0820 Report of General Information (July 2021). The RO thus closed the request, but did not notify the Veteran of this inability to obtain these records. Remand is required to so notify the Veteran and provide him the information so that he may attempt to obtain these records. Second, remand is required to obtain medical records and to obtain compliance with prior Board remands. The Board is obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Here, the September 2020 and April 2021 remands requested that the RO obtain two records that were scanned into Vista Imaging but were not associated with the claims file. See BVA Remand (September 2020); BVA Remand (April 2021). No action to attempt to obtain the noted records was taken by the RO after the April 2021 remand. The Board notes that it appears that the December 2017 record is an optometry record. See CAPRI (December 2020). As this would not be relevant to the issues on appeal, this record need not be obtained and associated with the claims file. Additionally, new VA treatment records indicate that additional, potentially relevant, records were scanned into Vista Imaging that have not been requested. See CAPRI (December 2020). This includes a September 2016 neurosurgery consult, a July 2016 pain management record, a June 2016 emergency room medical record from Baptist Medical, a May 2016 Rush Foundation medical record, including an x-ray report, an April 2016 Corpus Christi Medical Center emergency room visit record, an April 2015 Premier Medical Group, and a February 2015 MRI of the lumbar spine from Kosciusko Medical Clinic. See CAPRI (December 2020). These records scanned into Vista Imaging should be obtained on remand. 2. Entitlement to TDIU is remanded. The Veteran contends that his service-connected PTSD and lumbar spine disability cause him to be unemployable. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (June 2015); VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (January 2019). First, the Board finds that remand is required because it is inextricably intertwined with the issue of an increased evaluation for the lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Based on the currently assigned evaluations for the service-connected disabilities, the issue of TDIU is moot on and after March 16, 2015, when a 100 percent evaluation is assigned for the Veteran's service-connected PTSD. This is because the other service-connected disabilities do not equate to a 60 percent evaluation and thus no ancillary benefits such as special monthly compensaton may be assigned and the Veteran would not receive any additional benefits, even if TDIU were to be granted. See 38 C.F.R. §§ 4.16, 4.25; Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). The issue is not moot prior to the date that the 100 percent evalution is assigned for service-connected PTSD. Second, remand is required for compliance with a prior Board remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. at 271. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In the April 2021 remand, the Board directed the RO to obtain a VA examination that elicited from the Veteran his complete educational, vocational, and employment history and identified all limitations or functional impairment caused solely by the service-connected lumbar spine disability. See BVA Decision (April 2021). A September 2021 VA examination was conducted. In this regard, the only information the examiner elicited was that the Veteran stated he could not lift heavy items or walk over 5 minutes. The examiner the opined that the Veteran's disorder made him unable to walk over 5 minutes at a time. See C&P Exam (September 2021). No other information or assessment of functional impairment was provided. The Board finds that this is not substantial compliance with the examination requests. Third, remand is required to attempt to obtain any current SSA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the SSA. 38 C.F.R. § 3.159(c)(2). In a VA vocational rehab record, it was noted that the Veteran reported he had a currently open application with the SSA. See other (February 2022). Although a 2016 denial of SSA benefits with the underlying records is associated with the claims file, no attempts have been made to obtain any current records from the SSA. The matters are REMANDED for the following action: 1. Provide notice to the Veteran that is compliant with 38 C.F.R. § 3.159(e) of the inability to obtain private medical records from Baptist Hospital due to the requirement of a fee as noted in the July 2021 Report of General Information. 2. Obtain and associate with the claims file the following medical records that are scanned into Vista Imaging: i) a September 2016 neurosurgery consult; ii) a July 2016 pain management record; iii) a June 2016 emergency room medical record from Baptist Medical; iv) a May 2016 Rush Foundation medical record, including an x-ray report; v) an April 2016 Corpus Christi Medical Center emergency room visit record; vi) an April 2015 Premier Medical Group record; vii) a February 2015 MRI of the lumbar spine from Kosciusko Medical Clinic; and viii) a November 22, 2019 record. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. Obtain addendum opinions from a VA clinician. Elicit from the Veteran, either via telephone or an in-person interview, his complete educational, vocational, and employment history and note his complaints regarding the impact of his lumbar spine disability on employment. The examiner should identify all limitations or functional impairment caused solely by his service-connected lumbar spine disability, to include his bilateral sciatic nerve radiculopathy. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.