Citation Nr: 21068358 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 11-16 371 DATE: November 10, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October to December 1992, and from August to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a June 2016 hearing. The Board previously remanded this matter for further development in September 2016, August 2017, and September 2018. 1. Entitlement to a TDIU is remanded. In the September 2018 remand, the Board noted that while the AOJ had indicated in September 2017 correspondence that part of the Veteran's pre-2017 Counseling Evaluation Rehabilitation (CER) folder was unavailable, the Veteran continued to receive vocational rehabilitation subsistence allowance for training at Olney Central College in 2018. In order to properly adjudicate the claim for a TDIU, the Board instructed the AOJ to obtain the Veteran's entire VA vocational rehabilitation file, to include any documents relating to the award of Chapter 31 vocational rehabilitation subsistence allowance. The Board additionally directed the AOJ to document all attempts to retrieve these records, and, if all reasonable efforts had been exhausted without success, to issue a formal determination that such records either do not exist or that further results to obtain them would be futile. In August 2019 internal correspondence, an AOJ official noted not only that a CER folder for the Veteran existed, but that it has been sent to AOJ staff with a request to have it scanned into VBMS as soon as possible. February 2021 internal AOJ correspondence indicates that Volumes 1 and 2 of the Veteran's CER file were sent to a scanning site on September 9, 2019 for upload to VBMS. After two further inquiries, the most recent AOJ correspondence regarding the file is a resubmission of the September 2017 AOJ correspondence indicating a Counseling Record Narrative Report (VA Form 28-1902b) had not been prepared. As noted in the previous Board remand, the record clearly shows the Veteran received vocational and rehabilitation assistance since the September 2017 finding of unavailability, including August 2018 correspondence which indicates he was on track to graduate in December 2018. In subsequent internal correspondence, the AOJ has indicated both the existence of a CER file for the Veteran and that it was sent to a contractor for upload to the VBMS system. Finally, the Board observes that these records have not been attached to the claims file, and that the AOJ has not made a formal finding they are unavailable. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Given the forgoing, the Board finds that the previous remand instructions were not substantially complied with, and that an additional remand is required. Additionally, as it appears that the Veteran was on track to graduate in December 2018, the AOJ should attempt to obtain updated employment information from the Veteran. The matters are REMANDED for the following action: 1. With the assistance of the Veteran, obtain updated employment information since November 2016 (the date he originally submitted a VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain the Veteran's entire VA vocational rehabilitation file, to include any documents relating to the award of Chapter 31 vocational rehabilitation subsistence allowance. All reasonable attempts should be made to attempt any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.