Citation Nr: 22010573
Decision Date: 02/24/22	Archive Date: 02/24/22

DOCKET NO. 09-07 195A
DATE: February 24, 2022

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since August 20, 2013 is remanded.

REASONS FOR REMAND

The Veteran had active duty service from May 2001 to April 2003. 

In December 2017 and September 2021, and in pertinent part, the appeal with respect to this issue was remanded for evidentiary development. It has since been returned to the Board for further consideration.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since August 20, 2013 is remanded.

While the Board regrets the delay, a review of the record reveals that remand is required in order to satisfy the duty to assist.

In this regard, it appears that the Veteran has been employed by the Consumer Financial Protection Bureau since August 2011. See September 2012 private treatment record, December 2012 VA examination report, see also Vocational Rehabilitation and Education (VR&E) records. Unfortunately, it does not appear that the Agency of Original Jurisdiction (AOJ) has attempted to confirm employment or at least request information as to the Veteran's federal employment as it pertains to the issue of TDIU.

VA's duty to assist includes assisting the claimant in the procurement of relevant records in the custody of federal agencies. 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(2). This duty ends only where the records either are obtained or it is determined that such records do not exist or that further efforts to obtain them would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2).

If, after continued efforts to obtain federal records, VA concludes that it reasonably is certain the records do not exist or further efforts to obtain them would be futile, then it will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. That notice must contain the identity of the records that VA could not obtain; an explanation of VA's efforts; a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1).

In other words, the record reflects that relevant records from a federal agency have not yet been associated with the claims file; thereby triggering VA's duty to assist. As such, a remand is necessary in order to attempt to obtain the Veteran's employment records from the Consumer Financial Protection Bureau.

The matters are REMANDED for the following action:

1. In accordance with 38 C.F.R. § 3.159(c)(2), the AOJ should make as many requests as necessary to obtain any outstanding relevant employment records (to include a confirmation of employment) from the Consumer Financial Protection Bureau. Note the Veteran reported employment at this agency since August 2011.

If, after the aforementioned attempts to obtain those records are made, it is determined that it is reasonably certain that they do not exist, that further efforts to obtain them would be futile, or that the records cannot be obtained, the AOJ must provide the Veteran with notice of that fact in accordance with 38 C.F.R. § 3.159(e).

2. Readjudicate the claim. 

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Miller, 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.