Citation Nr: 25004547 Decision Date: 04/03/25 Archive Date: 04/03/25 DOCKET NO. 15-30 871 DATE: April 3, 2025 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected chronic gastritis, prior to November 14, 2024, is remanded. Entitlement to a rating in excess of 40 percent for service-connected chronic gastritis, from November 14, 2024, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to September 15, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1964 to August 1968. The Veteran has been granted a 100 percent VA rating based individual unemployability, effective from September 15, 2014. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. During remand status, the Veteran requested a second hearing in this appeal. See Quinn v. Wilkie, 31 Vet. App. 284, 290-91 (2019). In February 2023, the Veteran testified again before the undersigned VLJ. A hearing transcript is associated with the record. In April 2023 and March 2024, the Board remanded the claims for further development. A January 2025 rating decision granted a rating of 40 percent for service-connected chronic gastritis, effective November 14, 2024. Because this increase does not constitute a full grant of benefit sought on appeal, this matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Next, it is noted that an Appeals Modernization Act Board decision, dated in November 2024, remanded the issue of entitlement to an earlier effective date than September 15, 2014, for a TDIU. Specifically, the issue was remanded to the Director of the Compensation Service for?38?C.F.R. §?4.16(b) consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to an initial rating in excess of 10 percent for service-connected chronic gastritis, prior to November 14, 2024, is remanded. 2. Entitlement to a rating in excess of 40 percent for service-connected chronic gastritis, from November 14, 2024, is remanded. 3. Entitlement to a TDIU, prior to September 15, 2014, is remanded. Issues 1-3. To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Remand is required to obtain relevant outstanding private treatment records. Here, the record reflects that the Veteran received non-VA care authorized by VA for service-connected disability. See, e.g., CAPRI (January 2025), CAPRI (December 2024) & CAPRI (October 2024) (revealing community healthcare treatment at Trinity Medical Center and Merit Health Natchez). The Court has found that VA medical records and records of treatment at non-VA facilities authorized by VA are in its constructive possession, regardless of their relevance. See Turner v. Shulkin, 29 Vet. App. 207 (2018); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Moreover, 38 C.F.R. § 3.159(c)(2) provides that records from non-VA facilities providing examination or treatment at VA expense are considered records in the custody of a federal department or agency. It is noted that although there are some exceptions to the duty to assist, as provided in § 3.159(d), they address circumstances in which "there is no reasonable possibility that any assistance . . . would substantiate the claim" because, for example, the claimant is ineligible for benefits, entitlement is barred as a matter of law, or the claim is inherently incredible. The non-VA medical records identified here are not consistent with the types of exceptions identified in § 3.159(d). See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (holding that, in close or uncertain cases, "[a]s long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records"); McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (discussing VA's obligation, in fulfilling its duty to assist, to "fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits"). Therefore, remand is necessary to obtain copies of these treatment records and to afford the Veteran an opportunity to authorize release of relevant non-VA treatment records to VA. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Thus, given the above, the Board finds that remand is necessary for further development of the claims. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Accordingly, any adjudication of the claims at this juncture is unreasonable given the appearance of an inadequate and incomplete record. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003) (Board remands indicate an incomplete record). The matters are REMANDED for the following actions: 1. Associate with the claims file copies of treatment records from any non-VA health care facility authorized by VA, to include from Trinity Medical Center and Merit Health Natchez. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers (to include those authorized through VA's community care program) seen for signs and symptoms for his service-connected disabilities, to include from Trinity Medical Center and Merit Health Natchez. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's VA treatment records for the period from February 2025 to the Present. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.