Citation Nr: 21070028 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-08 447 DATE: November 22, 2021 REMANDED Entitlement to an extension beyond September 30, 2010, for a temporary total evaluation based on convalescence following surgery for residuals of left eye injury is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision. In June 2017, the Veteran had a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is in the claims file. This case was before the Board and remanded in December 2017 and again in September 2020. However, the Board unfortunately must again remand the claim as there was not substantial compliance with prior Board remand directives. Specifically, the 2017 and 2020 Board remand directives explicitly directed the RO to contact the appropriate records depository and request the Veteran's VA employment and pay records from September 2010 to March 2011, and that if the search yielded negative results, that fact must be clearly documented. While the RO did send letters to the National Personnel Records office and VAMC HR, the RO only requested these entities to fill out and return VA Form 21-4192 but did not request employment and pay records and time off for the time period as requested. Further, the RO did not document any express negative response. See 38 C.F.R. § 3.159(c). Rather, the June 2021 letter from the RO to the Veteran stated that his employment records cannot be located and are unavailable for review. First, this is not accurate, as VAMC HR submitted a partially filled out VA Form 21-4192 in February 2021; and there was a note on the second page of the form returned in May 2021 that the Veteran returned to work full time on January 11, 2011 and that he performed light duty from March 12, 2010 to January 11, 2011. In addition, the Veteran submitted a July 2021 letter from E.A., chief of police and security, who stated that the Veteran was employed with VA police service and was on light duty from March 2020 to January 2011. However, there is no clarification as to what "light duty" entailed and whether the Veteran did, in fact, return to work prior to January 2011. Second, VA has a duty to assist the Veteran in obtaining records from federal government agencies where it has "actual notice" that these records exist. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). The Board notes that the prior Board remands specifically noted the procedure and regulations for the RO to follow to request records for the Veteran's federal civilian employment, but the RO failed to do so. Specifically, the directives included that the RO was to request all relevant supporting documentation reflecting the Veteran's employment, reports of annual leave and sick leave, and accommodations for disability made during such employment. As noted above, only a VA Form 21-4192 was requested, which showed that the Veteran was on light duty from March 2010 to January 2011 with no further information or clarity as to what was deemed "light duty." Finally, as the second page of VA Form 21-4192 and the July 2021 statement from the Veteran's former co-worker/boss indicates the possibility that the Veteran returned to work after September 30, 2010, the RO was requested to forward the case to the appropriate Veterans Service Center Manager for consideration of entitlement to an extension beyond the initial six-month period of a temporary total rating due to convalescence following surgery in March 2010 under 38 C.F.R. § 4.30(b). This was also not done. As such, while the Board sincerely appreciates the Veteran's patience, another remand is required to comply with the duty to assist in attempting to obtain the Veteran's relevant VA personnel records to clarify what "light duty" entailed between March 2010 and January 2011. Then, the claim should be referred to the Veterans Service Center Manager in order to consider whether an extension of the Veteran's temporary total disability benefits is warranted beyond the initial six-month period following the Veteran's surgery on March 9, 2010. See 38 C.F.R. § 4.30(b)(2) (providing that an extension of one or more months up to six months beyond the initial six months period may only be made upon approval of the Veterans Service Center Manager). The matters are REMANDED for the following action: 1. Contact the appropriate records depository and request the Veteran's VA employment and pay records from September 2010 to March 2011. All relevant supporting documentation reflecting the Veteran's employment, reports of annual leave and sick leave, and accommodations for disability made during such employment should be requested. If any records cannot be obtained, there must be an express negative response and must be clearly documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile as provided in 38 U.S.C. § 5103A(c) and 38 C.F.R. § 3.159(c)(2). 2. Regardless of the above development, the evidence of record indicates the Veteran returned to work after September 30, 2010, as noted that he was on "light duty" but no clarity as to what light duty entailed. Therefore, the RO should forward the case to the appropriate Veterans Service Center Manager for consideration of entitlement to an extension beyond the initial six-month period of a temporary total rating due to convalescence following surgery in March 2010 under 38 C.F.R. § 4.30(b). 3. After the development requested above has been completed, the RO should again review the record. Any additional evidentiary development which may become apparent should be accomplished at this point. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.