Citation Nr: 21065781 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 12-33 523A DATE: October 27, 2021 REMANDED Entitlement to an initial disability rating for the Veteran's service-connected post-traumatic stress disorder (PTSD) in excess of 10 percent for the period prior to November 18, 2011, and in excess of 30 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal prior to January 31, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1987 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded by the Board for further development in an April 2021 decision. PTSD Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As part of the April 2021 remand the Board required the RO to obtain the Veteran's VA treatment records from the Fort Harrison VA Medical Center for the period from January 1, 2011 to September 24, 2011. Additionally, the RO was to obtain the Veteran's VA treatment records from the Southern Arizona VA Health Care System, specifically including the Tucson VA Medical Center and the Yuma CBOC, for the period from January 1, 2014 to February 28, 2014. In a May 2021 Development Letter, the RO informed the Veteran that records were obtained from the Fort Harrison VAMC from September 2011 to December 2011 and from February 2014 to March 2014; from the Cheyenne VAMC from January 2011 to April 2011; from the Eastern Colorado HCS from January 2011 to March 2011; and from the Department of Defense Facility at Fort Harrison from October 9, 2007 to October 26, 2007. However, there is no indication that the RO obtained the records specifically requested by the Board in its remand, and no formal finding of unavailability has been made. The Board does note a June 2021 document which indicated that the earliest clinical records on file under the Tucson VAMC begin in March 2014 and that no earlier records were located for either the Tucson VAMC or Yuma CBOC. However, this document also indicates that a negative reply is required if no treatment records are found, and the Board notes that there is no formal negative finding in the record. As these records may contain information that is pertinent to the Veteran's claims on appeal, the RO must attempt to obtain/locate them. TDIU Finally, the Board notes the issue of entitlement to a TDIU rating for the period on appeal prior to January 31, 2012, must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate the Veteran's VA treatment records from the Fort Harrison VA Medical Center for the period from January 1, 2011 to September 24, 2011, and the Veteran's VA treatment records from the Southern Arizona VA Health Care System, specifically including the Tucson VA Medical Center and the Yuma CBOC, for the period from January 1, 2014 to February 28, 2014. 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. If any requested records are not available, the record should be annotated with a formal finding to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.