Citation Nr: 21030476 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-13 537 DATE: May 19, 2021 REMANDED Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral retinitis pigmentosa, and if so, whether the reopened claim should be granted is remanded. Entitlement to service connection for dry eye syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran served on active duty from December 1966 to December 1968. When this case was previously before the Board in December 2019, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND Although further delay is unfortunate, the Board finds additional development is necessary prior to final adjudication of this matter. A remand by the Board confers upon the claimant, 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the above-noted December 2019 remand, the Board instructed the RO to initiate all indicated development to obtain missing claims folder records. In particular, the Board noted a February 2017 deferred rating decision wherein an employee of the Waco RO determined numerous documents were presently missing from the Veteran's electronic file. The employee noted the Veteran's 2004 rating decision and notice of disagreement addressing his prior claim for service connection for retinitis pigmentosa, as well as several other documents, were not associated with his electronic records. The Board instructed the RO to conduct all development necessary under M21-1, Part III, Subpart ii, Chapter 4, Section D to locate the missing claims documents, as well as rebuild the claims folder if documents could not be located. Following the December 2019 remand, the RO requested records from the Records Management Center (RMC), the Dallas VAMC, and also asked the scanning vendor to rescan any missing records from June 1995 through 2006. For several reasons, the Board finds substantial compliance with the December 2019 remand has not been achieved. Initially, the Board notes a June 2020 response from the Dallas VAMC, which indicates not all of the Veteran's paper files were provided, as the office was closed as a result of COVID-19. To date, the RO has not requested those records be provided. Additionally, in a February 2021 email correspondence, the scanning vendor indicated more specific information was required in order to comply with the RO's rescan request. The RO has not inquired as to what specific information is required or initiated additional development with the scanning vendor to obtain the missing records. Additionally, the Board observes that pursuant to M21-1, Part III, Subpart ii, Chapter 4, Section D, Subsection 4 (b), the RO is instructed to prepare a signed memorandum by an employee having knowledge of the facts surrounding any missing claims materials that were previously of record. This manual section outlines the evidence that should be included in the memorandum, and also indicates the memorandum should be reviewed and signed by a supervisor. Further, additional guidance is also provided in M21-5, Chapter 6, Section B, Subsection 5 for identifying and locating missing NODs. This section also provides for a "Lost NOD Memorandum" outlining which electronic systems were checked for the lost NOD information, which also must be reviewed and signed by a supervisor. This section also provides for a letter to the Veteran requesting either a copy of the previously submitted NOD, if available, or a new VA Form 21-0958. To date, the RO has not complied with the requirements of these manual directives. As such, the Board finds a remand is again necessary. Accordingly, these matters are REMANDED for the following actions: Undertake appropriate development to obtain any outstanding and missing records pertinent to the Veteran's claims in accordance with the above-noted M21-1 and M21-5 manual directives. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.