Citation Nr: 21042476 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-35 979A DATE: July 13, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2019 travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. The Board remanded the matter in June 2020, directing the RO to request missing VA treatment records, an addendum medical opinion for the Veteran's back condition and migraine headaches, an updated VA mental disorders examination, missing service treatment records, and to obtain VA vocational rehabilitation records. The RO did not obtain the Veteran's VA vocational rehabilitation records, nor did it make a formal finding of unavailability. As such, the Board finds that the remand instructions were not substantially complied with and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board remanded for the Veteran's VA vocational rehabilitation records, which were mentioned in an October 1998 VA Urgent Care Note from Roseburg VAMC. The note stated that the Veteran "has had some encounters with vocational rehabilitation, but is at a loss as to what to do next with his life." A separate private treatment note also references his vocational rehabilitation participation, stating that he "continues to do vocational rehab courses critical to his sense of well being." See October 1996 Note, Dr. R.G. The RO documented some attempts to obtain the VA vocational rehabilitation records. Most recently, in March 2021, a veterans' service representative requested information on whether any records exist, and, if not, requested a statement of such. A veteran readiness and employment (VR&E) officer responded, indicating that the Veteran does not have any current or prior VR&E claims, but the October 1998 VA Urgent Care Note was potentially referring to a Veteran's Health Administration (VHA) Vocational Rehabilitation program at the Roseburg VHA facility. See March 2021 Email Correspondence. The RO did not document any attempts to contact this program and inquire as to the missing records, nor did it make a formal finding on unavailability. Remand is necessary to determine whether these records are available, and, if not, notify the Veteran and his representative accordingly. Prior to return from remand, the RO granted the Veteran's service connection claims for his back condition, migraine headaches, and insomnia (claimed as acquired psychiatric disability, depression, and anxiety) in March 2021 and May 2021 rating decisions. The Veteran appealed the initial evaluation of his service-connected migraine headaches claim in May 2021, and that appeal was adjudicated in a separate July 2021 Board decision. As such, the Veteran's claim of entitlement to a TDIU is the only remaining claim before the Board. Since it is necessary to remand this matter again, the Board will provide the Veteran with another opportunity to submit a completed VA Form 21-8940. The Veteran submitted an incomplete VA Form 21-8940 in March 2019 that did not include his employment or education history beyond referencing a prior application stating that he lasted worked in the early 1980s. There is conflicting evidence regarding the Veteran's employment status based on other reports and notations in the record, and it is unclear when the Veteran became unemployed or underemployed due to his service-connected disabilities. For reference, at his April 2015 VA mental disorders examination, he reported last working as a self-employed handyman for about 10 years before retiring in about 2000. At his May 2021 VA mental disorders examination, he reported that he worked in a sawmill but discontinued after back problems, tried to go to school but couldn't complete it due to his back, and that he hasn't been able to work since the 1970s due to headaches and back pain. In his January 2015 Statement in Support of Claim, he reported that he has not been able to work for over 20 years. In his August 2003 Statement in Support of Claim, he reported working about 20 hours per month only to cover necessary expenses. Separately, per two 1099-Misc forms, received in February 2002 and February 2003, he earned $1285.42 in 2001 and $1418.66 in 2002 nonemployee compensation from American Home Furnishings. The Board notes that the RO documented a plan to request that the Veteran report his correct employment history, including self-employment, in March 2021, but it is unclear whether this request was actually made and/or if the Veteran did not respond. See March 2021 Deferred Rating Decision. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), "[t]he duty to assist is not always a one-way street" and if the Veteran desires help with his claim, he must cooperate with VA's efforts to assist him. The matters are REMANDED for the following action: 1. Send the Veteran another VA Form 21-8940, requesting that he provide complete prior education and employment history, including self-employment and part-time employment. 2. Request the Veteran's VA vocational rehabilitation records from the VHA Vocational Rehabilitation program at the Roseburg VHA facility, or any other potential repositories. Document all attempts to obtain these records, including any negative responses, and notify the Veteran and his representative accordingly. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.