Citation Nr: 21040617 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-14 278 DATE: July 6, 2021 REMANDED Entitlement to a disability rating greater than 70 percent for posttraumatic stress disorder (PTSD) with depressive disorder and opioid use disorder in early, full remission, is remanded. Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI) residuals is remanded. Entitlement to a compensable disability rating for asthma is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2004 to October 2007. He testified before the undersigned Veterans Law Judge during a May 2019 video conference hearing, and a transcript is of record. This appeal was initially before the Board of Veterans' Appeals (Board) in June 2019. However, although the Board sincerely regrets the additional delay, further development is necessary to comply with the 2019 Board remand directives. This development is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration, as directed in the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Specifically, in the 2019 decision, the Board found it imperative to remand the Veteran's claim in order to procure VA Vet Center records. The RO asked the Veteran to complete releases for these records, but this is incorrect as these are VA facilities. There is no documentation showing a request has ever been made for these specific documents. As such, another remand is required to obtain those missing records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 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 and records from facilities with which the VA has contracted. See 38 C.F.R. § 3.159 (c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. See 38 C.F.R. § 3.159 (c)(2). VA's duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. See 38 C.F.R. § 3.159 (c)(1). Here, per the 2019 remand directives, the RO sent letters and VA Form 21-4142 to the Veteran in December 2019, January 2020, March 2020, and May 2020; requesting that he identify and authorize release of any private treatment records, but the Veteran did not reply. Since it is his responsibility to do so, no further requests will be made to him. While his case is in remand status, he can submit the release forms if he wants VA's assistance in requesting these records or he can submit the records himself. Finally, as noted above, the Veteran did not reply to the post-remand development letters, which included providing information as to the Veteran's claim for TDIU and advised him to fill out and return VA Form 21-8940. He failed to do so. He is advised this information is necessary to fairly consider his claim. While his case is in remand status, he can submit the form and any evidence he may have, such as employment records (e.g., performance evaluations, disciplinary records, termination letters) that show how his service-connected disabilities have functionally impaired his ability to work since 2013, and information verifying his income for each year since 2013 (e.g., tax returns or earning summary from the Social Security Administration). If he does not do so, his claim will be adjudicated on an incomplete record. The Veteran is reminded that VA's duty to assist in the development of claims is not a one-way street. He should cooperate and assist as requested in the development. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete mental health treatment records from the VA Vet Centers to include Portsmouth, NH; Dover, MA; and Midland, TX). Document all records requests and any negative responses, and notify the Veteran accordingly. 2. Update the Veteran's VA treatment records from Big Spring, Dallas, and Houston VA medical facilities from June 2020 to present. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.