Citation Nr: 21000406 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 08-20 149 DATE: January 5, 2021 REMANDED Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 9, 2007 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1969 to July 1971. In December 2016, the Board issued a decision which granted entitlement to a TDIU from March 9, 2007, but denied entitlement to a TDIU prior to March 9, 2007. The Veteran appealed the denial of entitlement to a TDIU prior to March 9, 2007 to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2017 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating that portion of the December 2016 Board decision which denied entitlement to a TDIU prior to March 9, 2007 and remanding the matter to the Board. The Veteran testified at a hearing before a Veterans Law Judge in July 2010. A transcript of that hearing is associated with the claims file. In December 2020, the Board notified the Veteran that the Veterans Law Judge who conducted the July 2010 hearing was no longer employed at the Board, and that he was entitled to another hearing before a different Veterans Law Judge if he so desired. 38 C.F.R. § 20.717. Neither the Veteran nor his representative responded within the 30-day time limit. Accordingly, the Veteran is deemed to have waived his right to another hearing before the Board. The record also reflects that the Board sent the Veteran a letter in September 2020 indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. As noted above, the Veteran provided testimony in a hearing with a Veterans Law Judge in July 2010. The transcript of that hearing is of record, and has been considered by the undersigned Veterans Law Judge. Additionally, the Veteran did not respond to the Board’s December 2020 letter offering the opportunity to appear for another hearing before a different Veterans Law Judge. In the absence of any evidence of a pending hearing request, the Board will proceed with adjudication of the Veteran’s claim. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 9, 2007 is remanded. In its November 2017 Remand, in compliance with the September 2017 JMPR, the Board requested that the agency of original jurisdiction (AOJ) contact the Detroit Vet Center and request copies of all of the Veteran’s records of treatment for the period of September 18, 2006 through March 8, 2007. 38 C.F.R. § 3.159(c)(2) provides that VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency, and that VA may only end its efforts to obtain those records if VA concludes that the records sought do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If that is the case, the AOJ is obliged to notify the Veteran that the records sought do not exist. The notice must: (1) identify the records that VA was unable to obtain; (2) explain VA’s efforts to obtain the records; (3) describe any further action VA will take with respect to the claim; and (4) notify the Veteran that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). In this case, the AOJ made one request to the Detroit Vet Center to obtain the Veteran’s records. The July 2018 request was mailed to an address on E. Jefferson Avenue in Detroit, Michigan. The claims file does not contain a response from the Detroit Vet Center or any indication that the AOJ made any follow-up attempts to obtain the identified records. As noted above, 38 C.F.R. § 3.159(c)(2) requires VA to make as many requests as necessary to obtain relevant records from a Federal department or agency, and may only end its efforts if VA concludes that the records sought do not exist or that further efforts to obtain them would be futile. As the AOJ’s efforts to obtain the identified records from the Detroit Vet Center clearly do not indicate that the records do not exist or that further efforts to obtain them would be futile, remand is required for compliance with the Board’s prior remand directives. Additionally, the AOJ sent the July 2018 request to the Detroit Vet Center at an address on E. Jefferson Avenue in Detroit, Michigan. The Board’s November 2017 Remand noted that, if the AOJ does not use the phone number or address listed in the letterhead of a letter received from the Vet Center in September 2010, the AOJ must explain its alternate method for contacting the Vet Center and why the contact information listed on the letterhead could not be used. The September 2010 letter from the Detroit Vet Center lists an address on Cass Avenue in Detroit, Michigan. The AOJ did not contact the Vet Center at the address on Cass Avenue or provide the explanation requested by the Board. Last, the Board’s November 2017 Remand instructed the AOJ to provide a formal finding of unavailability with notification to the Veteran and his representative if the identified records were unavailable or did not exist. No such formal finding or notification are of record. AOJ 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 v. West, 11 Vet. App. 268 (1998). For the foregoing reasons, the Veteran’s claim must be remanded for additional efforts to obtain the Veteran’s treatment records from the Detroit Vet Center and for compliance with the Board’s prior remand directives. The matters are REMANDED for the following action: 1. The AOJ should contact the Detroit Vet Center and request copies of all records of treatment that the Veteran received at that facility covering the period from September 18, 2006 through March 8, 2007. If the AOJ does not use the phone number or address listed on the letterhead of an undated letter from the Vet Center, received from VA on September 1, 2010, in its efforts to contact the facility, the AOJ must explain the basis of its alternate method for contacting the Vet Center and why the contact information listed in the letterhead could not be used. If all procedurally appropriate actions to locate and secure the Detroit Vet Center records have been made and the AOJ concludes that such records do not exist or that further efforts to obtain the records would be futile, the AOJ must make a formal finding of unavailability, which must be associated with the claims file. The AOJ must also provide proper notice to the Veteran and his representative, which includes (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 and his representative must then be given an opportunity to respond. 2. After completing the above actions and any other development that may be indicated by any response received, the claim on appeal must be readjudicated. If the benefit sought on appeal is not fully granted, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.