Citation Nr: 21074876
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 10-14 276
DATE: December 16, 2021

REMANDED

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 25, 2015, to include on an extraschedular basis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1970 to August 1972 and from August 1972 to July 1978.

In March 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board.  A copy of the transcript has been associated with the claims file.  

In May 2015 and April 2018, the Board, among other actions, remanded the Veteran's appeal to ensure that VA fulfilled its duty to assist the Veteran.  

In September 2020, the Veteran was informed that the VLJ would not be deciding his claim and he was afforded the opportunity for a new hearing before another VLJ.  However, no request for a new hearing was received within 30 days.

In November 2020, the Board denied a TDIU prior to March 25, 2015, to include on an extraschedular basis.  Following the Board's decision, the Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court).  In July 2021, a private attorney representing the Veteran and a member of VA's Office of General Counsel filed a Joint Motion for Remand (JMR).  The parties agreed that the Board erred by failing to ensure that the Veteran was provided the notice required by 38 C.F.R. § 3.159 (e)(1) of VA's inability to obtain his SSA records.

1. Entitlement to a TDIU prior to March 25, 2015, to include on an extraschedular basis, is remanded.

In the July 2021 JMR, the parties agreed that that the Board erred when it failed to ensure that the Veteran was notified that his SSA records were unavailable.  The parties also agreed that the Veteran should be afforded the opportunity to submit any information that he has in his possession to VA before his claim is readjudicated.  Accordingly, the Board finds that additional development is required prior to the Board's further consideration of the claim on appeal.

The matters are REMANDED for the following action:

1. Provide the Veteran notice as required by 38 C.F.R.§ 3.159 (e)(1), that VA was unable to obtain his SSA records.  

2. Allow the Veteran sufficient time to provide VA with any documentation in his possession regarding his claim for disability benefits from the SSA. 

3. Thereafter, the AOJ must undertake any development which reasonably flows from the above directives and falls within VA's duty to assist the Veteran.

4. Thereafter, the AOJ must readjudicate the Veteran's appeal.  If the benefit sought is not granted to the fullest extent, the Veteran and his representative must be 

 

provided a copy of the readjudication and given an appropriate period to respond. 

 

SCOTT W. DALE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Rescan, 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.