Citation Nr: 21027859 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-15 241A DATE: May 7, 2021 REMANDED Entitlement to a total disability evaluation based on individual employability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Marine Corps from May 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In March 2019 the Board denied a claim for TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court, vacated the Board's decision and remanded the matter readjudication via Joint Motion for Remand (JMR). The Court found the Board erred by not ensuring compliance with VA's duty to assist by obtaining missing VA treatment records and the Board did not provide an adequate reasons or bases regarding the meaning of "sedentary work." 1. Entitlement to a TDIU rating is remanded. Sedentary Work In a January 2020 decision, the Court noted that VA has the Veteran's Court noted that VA has not explicitly defined the meaning of "sedentary employment" and held that, until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018) at 11. This is of relevance here, given the reference by the VA examiner to the Veteran's capacity for "sedentary work." In this case, the Board envisions potential sedentary employment to encompass a wide variety of administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, walk for extended periods or engage in physical activity requiring heavy lifting. TDIU The Court directed remand to obtain potentially relevant VA treatment records. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). Here, various Social Security Administration (SSA) records associated with the claims file show the Veteran received VA treatment from VA facilities as far back as 2009. However, the earliest VA treatment records associated with claims file date to April 2012. A March 2021 Submission of Evidence and Appellant's Brief noted the outstanding VA treatment records referenced by the Court were obtained, but due to the large file size the records were sent to the Board via CD-ROM. However, those records have not been associated with the claims file. Thus, remand is required to attempt to obtain these records. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Specifically, all outstanding VA treatment records from 2009 to the present. 2. If the AOJ cannot locate or otherwise obtain ANY RECORDS SOUGHT, INCLUDING BUT NOT LIMITED TO THE SPECIFICALLY IDENTIFIED RECORDS ABOVE, the AOJ MUST DOCUMENT SUCH FACT FOR THE RECORD, to include noting all steps taken to locate any such evidence and the reason for their unavailability. 3. Conduct any additional development indicated by the results of that ordered above before readjudicating all remaining matters on appeal VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, Associate 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.