Citation Nr: 21026589
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 14-32 233A
DATE: May 3, 2021

REMANDED

Entitlement to an initial rating higher than 50 percent from October 29, 2012 to February 9, 2016 for adjustment disorder with mixed anxiety and depressed mood is remanded.

Entitlement to special monthly compensation (SMC) is remanded.

REASONS FOR REMAND

The Veteran served honorably on active duty in the U.S. Navy from August 1965 to July 1968. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In an October 2018 decision, the Board denied the increased rating claim. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Joint Motion for Remand (JMR), the parties agreed that VA erred by failing to undertake necessary efforts to obtain outstanding federal records. The October 2018 Board decision was vacated, and the matter was returned to the Board for action consistent with the JMR. The Board then remanded the matter in December 2019 and October 2020, and the matter has been returned for further appellate review.

1. Entitlement to an initial rating in excess of 50 percent from October29, 2012 to February 9, 2016 for the adjustment disorder with mixed anxiety and a depressed mood is remanded.

The Board regrets the additional delay but the RO has not yet complied with the prior remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.  Stegall, 11 Vet. App. at 271.

The July 2019 JMR found that additional development was necessary to obtain outstanding and relevant federal records, to include from the DC Vet Center. The JMR also instructed that the RO shall document, in writing, all efforts to obtain the records and shall provide a formal finding of unavailability if the records could not be obtained. The Board remanded the matter in December 2019 and October 2020 to attempt to obtain the identified records. After the most recent Board remand, the RO obtained outstanding VA medical center treatment records, but there is nothing in the record to indicate the RO attempt to obtain the Vet Center records directly. Rather, the RO requested authorization from the Veteran to obtain the records, and the Veteran did not respond. The RO did not make a formal finding of unavailability of the records. There has not been compliance with the prior remand directives and remand is again required.

2. Entitlement to special monthly compensation (SMC) is remanded.

Entitlement to SMC is inextricably intertwined with the increased rating claim remanded herein. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Contact the DC Vet Center, not the DC VA Medical Center, and obtain and associate with the claims file all outstanding records of treatment from October 2012 to February 2016. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented in writing for the record. Required notice must be provided to the Veteran and his representative.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Smith, 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.