Citation Nr: 20045086 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 15-24 951 DATE: July 7, 2020 REMANDED Entitlement to an effective date prior to October 1, 2009 for a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Air Force from May 1985 to January 1991. As the Board noted in its August 2018 remand, this matter has had a long and complex procedural history. The Veteran’s claim for TDIU was denied in a March 2010 Board decision. The Veteran appealed the claim to the U.S. Court of Appeals for Veterans Claims (the Court), which remanded the claim in November 2011for further development and instructed the Board to consider he time period of 1991 to 2002, after the Veteran’s discharge from service and prior to his gainful employment. The Board subsequently granted the Veteran’s claim for TDIU in a June 2012 decision, but noted it was precluded from assigning an effective date for a TDIU rating in the first instance and must instead refer the matter to the Agency of Original Jurisdiction (AOJ). 38U.S.C.§7105. The AOJ set the effective date for the TDIU rating from October 1, 2009. The Veteran appeals from this decision, contending that the AOJ’s review in setting the effective date of TDIU was limited from 2009 to the present. He contends that a TDIU is warranted effective the day after discharge from service in 1991 as shown in the Air Force assignment to the temporary disability retired list from 1991 to 1996 and in letters from private physician D.C.R. dated September 10, 1992 and from Dr. A.M.M. dated January 20, 2005. The Veteran was employed starting in 2002 but contends that it was against medical advice and necessary to support his family. In this remand, the Board requested specific evidentiary development in order to comply with the terms of a November 2011 Memorandum Decision of the U.S. Court of Appeals for Veterans Claims. In the November 2011 Memorandum Decision, the Court stated it believes the Veteran’s arguments regarding TDIU in the period from 1991 to approximately 2002 deserve full consideration and that the Board must take care to develop and consider potential evidence of unemployability. The Veteran also characterized his educational pursuits after discharge from service as VA vocational rehabilitation, and the records from that program should have been obtained and considered. Furthermore, there are no service medical records (SMRs) demonstrating the Veteran’s physical condition upon discharge in the record. The Board finds that the Agency of Original Jurisdiction (AOJ) has not substantially complied with the Board August 2018 remand directives. Therefore, this matter must be remanded for further evidentiary development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Discussion In the August 2018 remand, the Board directed the AOJ to contact the Veteran to identify outstanding records of pertinent medical treatment from VA or private health care providers prior to 2000 including the records of private physician D.C. Reynolds from whom there is one letter of record dated in September 1992 . In May 2019, the AOJ did sent a letter to the Veteran which requested assistance in recovering records and information pursuant to the remand directives. While the record has many copies of signed authorizations to obtain medical records, none identify the name and address of the provider potentially in possession of the records. The record fails to disclose that the AOJ made either an additional attempt to obtain the missing identities and further pursue obtaining the records or a “finding” that such an attempt would be futile. The Veteran should be advised and given the opportunity to properly identify the medical care providers who he reported had evaluated and treated his back disability from 1991 to 2009. The Veteran applied for VA vocational/rehabilitation benefits dated March 21, 1991 and has reported earning college credit. However, electronic mail messages indicate that no records have been found. However, in view of the Veteran’s application for benefits and his college work, the Board’s remand requested another search for these records. The Veteran must be advised and requested to provide any information in his possession regarding VA education benefits from 1991 to 2002. Finally, the Veteran reported working for the Social Security Administration starting in about 2002 until 2009. Had the Veteran been unemployable from 1991 to 2002, it is possible that he was examined and may have been receiving disability benefits from the Social Security Administration. No records of examination and adjudication are in the file for benefits before or after 2002. A substantial file of service treatment records including reports of a medical board and examination in July and August 1990 are of record and posted in May 2019. There are also records of VA examination in February 1991, immediately after discharge. No further action for additional service records is warranted. The AOJ-issued April 2020 supplemental statement of the case (SSOC) makes no mention of any correspondence—including that of May 2019—sent to the Veteran in recovering records and information pursuant to the Board’s remand directives. See April 21, 2020 SSOC, p. 5. The matter is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers prior to 2000, to obtain the treatment records identified by the Veteran to the extent possible, including medical records from Dr. Dwight C. Reynolds. Verify with the Veteran that a statement from Dr. Reynolds’ dated in May 1993 is indeed in the record that he referred to in his brief to the Court, and if so, associate it with the current TDIU claim. The AOJ must make two attempts to obtain these relevant records unless the first attempt demonstrates the further attempts would be futile. Should the AOJ determine that more than one attempt to obtain these relevant records would be futile, the AOJ must make a formal finding delineating the steps that have been taken and explaining, with specificity, why any further attempts to obtain these relevant records would be futile. 2. Should these records not be obtained, the AOJ must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.