Citation Nr: 21023080 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-05 497 DATE: April 20, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for bilateral pes planus is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served as a member of the Florida Army National Guard from January 1980 to July 1982, which included an initial period of active duty for training (ACDUTRA) from March 1980 to June 1980. The nature of the remainder of the Veteran’s service is unverified; however, she has attained “veteran” status by virtue of her service-connected disabilities. This case comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and October 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with those determinations, among others, and the present appeal ensued. The Veteran and her cousin provided testimony during a personal hearing before a Decision Review Officer (DRO) in September 2012. A transcript of this hearing is associated with the Veteran’s file. The Veteran was previously represented in these matters by a private attorney and requested to participate in a Board hearing; however, in February 2016, she withdraw her request for a Board hearing and revoked the power of attorney for her private attorney. The issues on appeal were previously remanded by the Board in May 2016 and June 2018. The latter Board action also partially granted the Veteran’s appeal for an increased initial evaluation for service-connected pes planus; the 10 percent initial evaluation was increased to 30 percent, effective from the date of service connection. The issue of entitlement to a TDIU has been raised by the record in connection with her appealed issue seeking an increased initial evaluation for her service-connected bilateral pes planus. Accordingly, the TDIU appeal is considered to be part and parcel of the appeal seeking an increased initial evaluation and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is a part of a claim for increased compensation). 1. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus is remanded. On the Veteran’s initial claim, which was filed in January 2009, she reported receiving Supplemental Security Income, which is a Federal Program funded by the United States Treasury and administered by the Social Security Administration. This information was misinterpreted by the AOJ, who requested the SSA to provide VA with any decision regarding disability benefits from that Administration and the records upon which it was based. The SSA responded to this request in the negative in August 2020, and the AOJ produced a formal finding of unavailability regarding any SSA decision and/or records pertaining to the Veteran. In April 2020, the AOJ discovered that, subsequent to the actions outlined above, the Veteran applied for, and was granted, disability benefits from the SSA with an initial entitlement date of August 2018 and a disability onset date of September 2004. Despite receiving actual notice of the above, the AOJ did not undertake any efforts to seek and/or obtain a favorable decision and/or the records upon which was based from the SSA. As these federal records would impact all of the issues on appeal, a remand of all issues is necessary in order to ensure that VA fulfills its duty to assist the Veteran in substantiating her appeal. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). 2. Entitlement to service connection for an acquired psychiatric disability is remanded. In addition to the above development, remand of this appealed issue is necessary to verify the nature of the Veteran’s service in the Florida Army National Guard, as the laws to establish service connection, to include whether or not the presumption of sound condition is applicable, are dependent on whether the Veteran’s service, at any given time, was active duty, ACDUTRA, or inactive duty training (INACDUTRA). Despite the critical downstream impact of the distinction noted above, the record for review includes no personnel records pertaining to the Veteran, scant service treatment records, and little indication that the AOJ undertook efforts to locate and/or obtain such. The Board observes that the Veteran conveyed to VA in May 2009 that she had been told that “all National Guard records were burned up in St. Louis;” however, the Board is unaware of any mass destruction of federal records via fire in St. Louis, Missouri, aside from the fire at the National Personnel Records Center (NPRC) in July 1973 – more than six years prior to the Veteran’s enlistment in the Florida Army National Guard. In light of above, the Board concludes that a remand is necessary to ensure completeness of the record and to verify the nature of the totality of the Veteran’s National Guard service, with the latter also affirming the correct legal framework to analyze her service connection claim. 3. Entitlement to a TDIU is remanded. As an inferred claim for TDIU has been reasonably raised by the record, a remand is warranted. The Veteran must be provided with Veterans Claims Assistance Act (VCAA) notice regarding the evidence necessary to substantiate a claim of entitlement to a TDIU; given an opportunity to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability; and to provide releases for any employers identified in the completed VA form 21-8940. The AOJ must also undertake reasonable efforts to secure a completed VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from the Veteran’s most recent employer. Further, the legal framework for readjudication of this appealed issue is tenuous at this time, as the Veteran does not meet the requirements for a schedular TDIU under 38 C.F.R. § 4.16 (a); however, this may change based on the outcomes of the other appealed issues remanded by the Board. The matters are REMANDED for the following action: 1. The AOJ must provide the Veteran with adequate notice of the criteria necessary to establish a claim for TDIU under 38 C.F.R. § 4.16(a) and (b). 2. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim for a TDIU. The Veteran should be instructed on how to properly complete and submit the form. The Veteran is encouraged to cooperate with the AOJ’s efforts. 3. If the Veteran replies to directive (2), the AOJ must attempt to contact the Veteran’s prior employer(s) to request that they complete a VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 4. The AOJ must obtain and associated with the file all updated records of VA treatment pertaining to the Veteran. 5. The AOJ must contact the Veteran and request that she complete a release for any post-service treatment records that are outstanding and pertinent to the disabilities subject to these remanded issues and her occupational history. In these releases, the Veteran should provide a time period in which she was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. The Veteran is encouraged to cooperate with the AOJ in obtaining these records by completing and submitting a release for all identified records. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 6. The AOJ must obtain and associate with the file any decision and award letters concerning disability benefits from the Social Security Administration (SSA), to include the medical records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 7. The AOJ must contact the National Personnel Records Center (NPRC), Records Management Center (RMC), the Defense Finance and Accounting Service (DFAS), the Department of the Army, the office of the Adjutant General of Florida, and any other appropriate location, to request the complete service treatment records, service personnel records, and pay stubs for the totality of the Veteran’s service from January 1980 to July 1982. All efforts taken to obtain these records must be memorialized in the file. The Veteran must be notified of any negative replies. 8. Based on the information obtained from the above instructions, the AOJ must verify the exact dates of each period of ACDUTRA, INACDUTRA, and active duty that the Veteran attended during her service in the Florida Army National Guard from January 1980 to July 1982. The AOJ must prepare a summary of this information and associate it with the claims file. 9. Based on the above, the AOJ must take any additional development to obtain medical opinions concerning the nature, date of initial onset, and etiology of any acquired psychiatric disability identified during the appeal period, to include whether the presumption of sound condition applies to such in light of the nature of the Veteran’s service and whether the disability was aggravated under the appropriate laws. 10. Thereafter, the AOJ must readjudicate the Veteran's appeals to establish service connection and seeking an increased initial evaluation. If any benefit sought on appeal is not granted to the fullest extent, the AOJ must issue the Veteran a copy of the readjudication and provide her an appropriate opportunity to respond. 11. Thereafter, the AOJ must undertake any additional development necessary to readjudicate the Veteran’s TDIU appeal, to include (1) confirming the Veteran’s complete educational and occupational histories, obtaining any necessary vocational assessments or opinions, and referring the Veteran’s TDIU appeal to the Undersecretary for Benefits or the Director of the Compensation Service for appropriate action as per 4.16(b) for any period since January 2009 where she was not participating in a substantially gainful occupation under 38 C.F.R. § 4.16 and her combined evaluation does not meet the criteria for a schedular TDIU under 38 C.F.R. § 4.16 (a). 12. Thereafter, the AOJ must readjudicate the Veteran’s TDIU appeal in light of the totality of the record. If the benefit sought is not granted to the fullest extent, the AOJ must issue the Veteran a copy of the readjudication and provide her an appropriate opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John M. Middleton 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.