Citation Nr: 20028890 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 15-16 542 DATE: April 24, 2020 REMANDED Entitlement to a higher rating in excess of 10 percent for service-connected cervical fusion, during the period from April 1, 2011 is remanded. Entitlement to a higher initial rating in excess of 30 percent for service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with anxiety and depression prior to December 4, 2014 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 22, 2013 and since September 27, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1989 to August 1996. A videoconference hearing was held in July 2015 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. The procedural history of this case is a lengthy one, involving an initial remand by the Board for further development in November 2015. Then, in a May 2017 decision, the Board awarded a rating of 50 percent for an acquired psychiatric disorder from December 4, 2014 and denied entitlement to a rating in excess of 30 percent for the period prior to December 4, 2014. In addition, the Board remanded the remaining claims on appeal. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Veteran’s then-attorney and VA’s General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the Court to vacate the Board’s decision insofar as it had denied the claim for a rating in excess of 30 percent for an acquired psychiatric disorder prior to December 4, 2014. In June 2018, the Court granted the parties’ Joint Motion. In December 2018, the Board remanded the Veteran’s appeal in compliance with the Court’s directives. Unfortunately, the Board finds that substantial compliance was not obtained and additional remand is necessary prior to rendering a decision on the appeal. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 1. Entitlement to an increased rating for cervical fusion is remanded. 2. Entitlement to a higher initial rating in excess of 30 percent for service-connected acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety and depression prior to December 4, 2014 is remanded. 3. Entitlement to a TDIU prior to April 22, 2013 and since September 27, 2016 is remanded. Per the December 2018 Board remand, an April 2013 letter from the Veteran’s attorney, the Veteran received benefits from the Tennessee Department on Labor regarding unemployment because the Veteran claimed to have lost her job due to her service-connected disabilities. Although a benefit information form noting her entitlement is associated with the record, VA has not requested any medical records which may be associated with the benefits awarded from the Department of Labor and Workforce Development. VA has a duty to assist claimants under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. This duty includes requesting pertinent records. On remand, April 2, 2019 correspondence from the Agency of Original Jurisdiction (AOJ) to the Tennessee Department of Labor and Workforce Development shows a request for “all treatment records, hospital summaries, findings and/or diagnoses pertinent to the Veterans’ receipt of disability benefits, to include copies of all medical records underlying its determination.” April 25, 2019 correspondence from a D.F. responded to the AOJ records request, stating that “[t]his letter appears to need medical information and is not something that we response to at the Department of Labor and Workforce Services.” The RO, thereafter, issued the Veteran a supplemental statement of the case with no further development. The Board finds that the AOJ did not substantially comply with the Board’s December 2018 remand directives. Not only should the AOJ have originally requested all pertinent records from the Tennessee Department of Labor and Workforce Services, but the AOJ should have also followed up with an additional records request upon obtaining the April 2019 negative records response. Therefore, on remand, the Board directs the AOJ to request from the Tennessee Department of Labor and Workforce Services all pertinent records relating to the Veteran’s receipt of disability benefits, to include but not limited to any medical evidence used in arriving at their determination. The matters are REMANDED for the following action: 1. Request from the appropriate repository ALL records pertinent to the Veteran’s application for disability benefits from the state of Tennessee, TO INCLUDE any determination and corresponding medical records underlying the determination. All records obtained or response(s) received should be associated with the claims folder. The Board reminds the AOJ that the April 2019 records request to the Tennessee Department of Labor was limited to only medical treatment records. The Board now requests copies of ALL documentation related to the Veteran’s application for disability benefits. 2. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran with a supplemental statement of the case, and should give the Veteran and his representative a reasonable opportunity to respond before returning the record to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.