Citation Nr: 21012455
Decision Date: 03/04/21	Archive Date: 03/04/21

DOCKET NO. 13-26 479
DATE: March 4, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease, for accrued benefits purposes, is remanded.

Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) remanded.

INTRODUCTION

The Veteran served on active duty from November 19877 to September 1979.  The Veteran died in February 2018.  The Veteran’s daughter has been substituted as the Appellant.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of this hearing has been associated with the claims file.

The Board remanded these claims in June 2020.  After the RO issued a December 2020 supplemental statement of the case, the appeal was remitted to the Board for further appellate review.

REASONS FOR REMAND

Pursuant to the June 2020 remand, the RO undertook significant efforts to contact the Appellant and her attorney; however, such efforts were unsuccessful.  Further, with the exception of one mailing, each piece of correspondence issued to either the Appellant or the attorney has been returned as undeliverable, including the June 2020 remand and the December 2020 supplemental statement of the case.  The Board finds that another remand is warranted in order for the RO to attempt to contact the Appellant and her attorney through alternative means (i.e., telephonic or email, in addition to traditional mail).

It is generally the Appellant’s burden to keep VA apprised of her whereabouts.  If she does not do so, VA is not obligated to “turn up heaven and earth to find [her].”  Hyson v. Brown, 5 Vet. App. 262, 265 (1993).

The Appellant is also advised that corresponding to VA’s duty to assist her in obtaining information is a duty on her part to cooperate with VA in developing her claims.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that “[t]he duty to assist is not always a one-way street”).  VA’s duty must be understood as a duty to assist the Appellant in developing her claims, rather than a duty on the part of VA to entirely develop the claims with the Appellant performing a passive role.  Turk v. Peake, 21 Vet. App. 565, 568 (2008).

The matters are REMANDED for the following action:

1. Attempt to verify the Appellant’s mailing address, email address, and telephone number.

2. Attempt to verify the attorney’s mailing address, email address, and telephone.

3. Undertake efforts to contact the Appellant and her attorney via mail, email, and telephone.  Each such attempt must be documented in a report of contact and each of those reports must be associated with the claims file.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Sean G. Pflugner, 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.