Citation Nr: 21001880 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-28 002 DATE: January 12, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a compensable rating for a right ear hearing loss disability is remanded. Entitlement to a total disability rating due to unemployability (TDIU) during the period prior to June 6, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to April 1991. This matter came before the Board of Veterans Appeals (Board) on appeal from December 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A June 2018 Board decision granted service connection for depressive disorder and remanded the remaining issues on appeal for further development. A November 2019 Board decision remanded the issues on appeal for further development. An October 2020 rating decision granted service connection for PTSD and a left ear hearing loss disability. As this constituted a complete grant of the benefit sought on appeal for those issues, they are not before the Board. The October 2020 rating decision also granted a TDIU effective June 6, 2019. The Board notes, however, that the Veteran filed his claim for TDIU on June 10, 2009. When a grant of TDIU does not span the entire period on appeal, it serves only as a partial grant of the benefits sought and the Veteran need not appeal the effective date assigns for the issue to remain in appellate status. See Harper v. Wilkie, 30 Vet. App. 356 (2018). As TDIU was not granted for the entire period on appeal, the issue of entitlement to TDIU prior to June 6, 2019 remains on appeal. 1. Entitlement to service connection for a back disability The November 2019 Board decision noted that there were outstanding private treatment records potentially relevant to the issue of service connection for a back disability. The remand directives asked that the Veteran be asked to complete an authorization form for the records and that two requests for authorized records be made unless it was clear after the first request that a second request would be futile. The record shows that a November 2019 development letter asked the Veteran to complete the required authorization form and that the Veteran returned the requested form in December 2019. A December 2019 Medical Records Reject Notice indicated that the request was incomplete as it was missing information, a fact which was noted in a January 2020 email regarding development status. An April 2020 letter again asked the Veteran to complete an authorization form, but did not indicate that the prior form was incomplete or that the records request had been rejected. The Veteran again returned the requested authorization in May 2020, completing both of the requested forms. A May 2020 Medical Records Reject Notice then indicated that the request was again incomplete, this time for incomplete PHP information. The record is silent for any subsequent attempt to obtain complete information or otherwise inform the Veteran that the information provided was incomplete. The October 2020 Supplemental Statement of the Case (SSOC) cited an “incomplete VA form 21-4142” in the list of evidence but did not list any attempts to remedy the situation. Remand is required in this case to ensure compliance with the duty to assist. The Veteran twice promptly returned the requested authorization and was neither advised the medical records request had been rejected due to incomplete information nor given an opportunity to provide the missing information. The Board notes that the duty to assist includes a duty to notify the claimant of an inability to obtain records. 38 C.F.R. § 3.159(e). As both of the medical records requests were rejected for incomplete information, not because the records did not exist or were otherwise unavailable, and the record is silent for any subsequent attempt to obtain the missing information, the Board cannot find that the duty to assist has been satisfied. Remand is therefore required. 38 C.F.R. § 3.159. 2. Entitlement to a compensable rating for a right ear hearing loss disability The AOJ last adjudicated the issue of an increased rating for the right ear hearing loss disability in an October 2020 Supplemental Statement of the Case (SSOC). Since that time, an October 2020 VA audiological examination containing right ear results has been added to the claim file. The Board notes that the October 2020 SSOC did not include the October 2020 VA examination in its list of evidence and cited only a January 2020 VA examination in its discussion of right ear hearing loss. A waiver of AOJ review was not submitted for the October 2020 VA examination. Accordingly, remand is necessary for the AOJ to consider the new evidence of record and issue an SSOC. 3. Entitlement to a total disability rating due to unemployability during the period prior to June 6, 2019 As noted above, the October 2020 rating decision granted TDIU for the period after June 6, 2019, stating that this was the date that the Veteran met the schedular threshold. The issue of entitlement to TDIU prior to June 6, 2019 must therefore be remanded as it is inextricably intertwined with the remanded issues of an increased rating for the right ear disability and service connection for a back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(e) regarding May 2020 Medical Records Reject Notice and the missing information required to complete the medical records request. The Veteran should then be provided the opportunity to supply the required information. If the required information is obtained, the AOJ should make two requests for the authorized records from the private provider, unless it is clear after the first request that a second request would be futile. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.