Citation Nr: 21021698
Decision Date: 04/13/21	Archive Date: 04/13/21

DOCKET NO. 16-12 639
DATE: April 13, 2021

REMANDED

Entitlement to a total disability evaluation based upon individual unemployability (TDIU) prior to November 2, 2016, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1974 to February 1976.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran withdrew his request for a Board hearing in a September 2017 written statement.  Therefore, the Veteran’s hearing request is withdrawn, and the Board will proceed with adjudication of the issues.  See 38 C.F.R. § 20.704(e).

This matter was last before the Board in August 2020, at which time it was remanded.

Entitlement to a TDIU prior to November 2, 2016, is remanded.

Unfortunately, this matter must once again be remanded.  Of central concern in this case is the Veteran’s employment status prior to November 2, 2016.  A review of the record indicates that the Veteran worked for VA prior to this date, and as recently as 2017.  VA has obtained his Vocational Rehabilitation records and numerous VA treatment records; however, the available records document several employee health notes that have not been obtained and associated with the record.  See e.g. September 11, 2014, Employee Health Note stating, “You may not VIEW this COMPLETED EMPLOYEE HEALTH NOTE.”  Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of VA, an attempt to obtain those reports must be made.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, “in contemplation of law, before the Secretary and the Board and should be included in the record”).  Accordingly, the claim is remanded to attempt to obtain these records.  

The matters are REMANDED for the following actions:

1. Obtain and associate with the record copies of the Veteran’s records that are found in the Veteran’s Employee Health Notes.  Conduct any ensuing additional development, as necessary, and document negative results.  Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e).

2. If additional records are secured, refer this case to the Director of Compensation Service for consideration of whether the Veteran is entitled to the award of a TDIU at any time during the rating period on appeal from August 10, 2011 to November 2, 2016, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b).  The electronic claims file should be provided to the Director of Compensation Services.  If it is determined that an opinion cannot be entered without additional examination, such examination should be scheduled in accordance with applicable provisions.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.  If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

R.R. WATKINS

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Joseph R. Keselyak, 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.