Citation Nr: 21015182
Decision Date: 03/16/21	Archive Date: 03/16/21

DOCKET NO. 16-41 603
DATE:  March 16, 2021

REMANDED

Entitlement to an initial rating in excess of 70 percent for major depressive disorder with anxious distress and traumatic brain injury (TBI) to include motion sickness, stuttering, and stammering is remanded.

Entitlement to a separate evaluation for motion sickness.

Entitlement to a separate evaluation for speech impediment.

Entitlement to a separate evaluation for photophobia.

Entitlement to a separate evaluation for a psychiatric disability to include major depressive disorder, insomnia, and anxiety.

Entitlement to a rating in excess of 10 percent for right fifth metatarsal fracture, chronic tendonitis, bursitis, and pes planus is remanded.

Entitlement to service connection for fibromyalgia.

Entitlement to service connection for chronic fatigue syndrome.

REASONS FOR REMAND

The Veteran had active service from November 1995 to August 1999. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In October 2017, the Board remanded the Veteran’s claims for additional development. 

In the October 2017 Board remand, the agency of original jurisdiction (AOJ) was instructed to obtain the Veteran’s vocational rehabilitation file. An email correspondence from the RO dated in September 2018 indicates that the Veteran’s pertinent VR&E (vocational rehabilitation and employment) records were being requested in conjunction with a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) which is not the subject of this appeal. Several pages of the Veteran’s VR&E file were subsequently associated with the claims file. However, it does not appear that the entire vocational rehabilitation file was ever requested in conjunction with the remand directives. Therefore, the Board finds that the development conducted does not adequately comply with the October 2017 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998).

The matters are REMANDED for the following action:

1. Obtain the Veteran’s entire VA Vocational Rehabilitation file and associate it with the claims file.

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2. Then, readjudicate the issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board.

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Cryan, 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.