Citation Nr: 21027862 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 12-29 898 DATE: May 7, 2021 REMANDED Entitlement to a permanent and total disability rating for pension purposes, to include under the provisions of 38 C.F.R. § 3.321(b)(2), is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1995 to October 1998. He had additional service in the Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2011 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied the claim on appeal. The procedural history of this case has been detailed at length in the prior actions in the appeal. As such, it will only be repeated herein as needed to explain the state of the matter currently before the Board. Most recently, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further evidentiary development in November 2020. In June 2013, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who has since retired. In a March 2021 letter, the Board notified the Veteran of his right to request a new hearing before another VLJ who would decide his appeal. As the Veteran has not responded to that letter, the Board will presume that he does not wish to have another Board hearing. A transcript of the June 2013 hearing is of record. Entitlement to a permanent and total disability rating for pension purposes The Board is cognizant of the fact that the current appeal has been the subject of multiple prior remands. The Board, however, finds that an additional remand is warranted to ensure that the Veteran is allowed every possible consideration in this appeal. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board remanded the Veteran's appeal to the AOJ in November 2020 with specific instructions to request that the Veteran again provide information pertaining to his employment history and earnings during the period since August 2010, to include specifically providing profit and loss tax forms from 2015-2019, which the Veteran reported he was attaching with a July 2020 submission of evidence via direct upload to the VA Evidence Intake Center. The Board directed the AOJ to explain to the Veteran that these documents were not uploaded with the submission. While the AOJ sent the requested letter to the Veteran in November 2020, wherein the AOJ asked that the Veteran complete a VA Form 21P-0517-1 (Eligibility Verification Report) for specific time periods dating from August 19, 2010. With respect to the Veteran's profit and loss tax forms, however, the AOJ only stated that the Veteran should provide tax forms for calendar years 2010 through 2019, which were not uploaded with the July 2020 submission of evidence. The Board observes that, where the AOJ did not specifically note that the Veteran's profit and loss tax forms from 2015-2019, which he reportedly was uploading with his July 2020 submission to the VA Evidence Intake Center, were not received, the request may have been misleading for the Veteran. Moreover, the Board cannot find that the AOJ substantially complied with its remand directives. See id. In this regard, as the Board noted in the November 2020 remand, in a May 2020 Supplemental Statement of the Case (SSOC), the AOJ continued to deny the Veteran's claim for nonservice-connected pension because it was "unable to determine if [the Veteran] meet[s] the income and net worth requirements needed to qualify for nonservice connected pension." The AOJ stated that, without this information, "the issue of permanent and total disability provisions of 38C.F.R. §3.321(b)(2) [is] rendered moot." Thus, given the AOJ's stated basis for continued denial of the Veteran's claimand the Veteran's apparent prior attempt to provide necessary information with regard to his income and net worth, the Board again finds that remand is warranted to ensure that he is specifically notified that the documents he was reportedly uploading in July 2020 were not received, and to afford him another opportunity to submit the necessary information, as well as any additional information and/or evidence, pertinent to the current claim on appeal. In remanding this claim, the Board reminds the Veteran that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Thus, the Veteran should take all necessary measure to ensure that he is cooperating fully with the AOJ's request for evidence in developing his claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran and his representative a letter again requesting that the Veteran provide necessary information pertaining to his employment history and earnings during the period since August 2010. In so doing, specifically explain to the Veteran that his profit and loss tax forms from 2015 to 2019, which he was reportedly uploading with his July 2020 submission via direct upload to the VA Evidence Intake Center, were not received, and specifically ask that he include in his submission his profit and loss tax forms from 2015 to 2019. 2. To help avoid future remand, ensure that the requested action has been accomplished, to the extent possible, in compliance with this REMAND. See Stegall, 11 Vet. App. at 271. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). He is also advised that he has the right to submit additional evidence and argument with respect to this remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.