Citation Nr: A21018451
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 210601-163200
DATE: November 18, 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 February 1969 to October 1970.  The Board of Veterans' Appeals (Board) previously remanded this issue in December 2020 and March 2021 decisions under the legacy system.  In, May 2021 the agency of original jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC).  The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act, by submitting a timely VA Form 10182, Decision Review Request: Board Appeal identifying the May 2021 SSOC; which is the decision on appeal.  

1. Entitlement to a TDIU is remanded.

In the March 2021 remand, the Board instructed the AOJ to obtain the Veteran's record of employment income earnings from the United States Social Security Administration (SSA) from 2003 until the present.  Instead of attempting to retrieve these documents from the SSA directly, the AOJ asked the Veteran to provide them in March 2021 correspondence.  In the May 2021 decision on appeal, the AOJ denied the Veteran's claim of entitlement to a TDIU on the basis that he had failed to provide these SSA records as well as further information regarding past employment.  

The Board notes that the AOJ did not attempt to retrieve the SSA records identified in the prior Board remand before issuing the decision on appeal.  The Board is required to ensure compliance with the instructions of its remands.  Stegall v. West, 11 Vet. App. 268 (1998).  See also Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA).  Therefore, not attempting to obtain these records prior to issuing the May 2021 SSOC constitutes a pre-decisional duty to assist error, and remand is warranted in order to obtain outstanding, relevant SSA records. 

The matters are REMANDED for the following action:

Obtain the Veteran's record of employment income earnings from the United States Social Security Administration for every single year from 2003 until the present, as well as any other SSA records relevant to his claim of entitlement to a TDIU.

 

 

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.