Citation Nr: 25007293 Decision Date: 05/29/25 Archive Date: 05/29/25 DOCKET NO. 15-28 690 DATE: May 29, 2025 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1972 to September 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In a May 2021 Decision, the Board denied entitlement to a TDIU. The Veteran appealed the Board's Decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2023 Memorandum Decision, the Court vacated the Board's Decision with regard to TDIU and remanded the matter for readjudication. The Board remanded this issue in November 2023 for further development. Entitlement to TDIU is remanded. In pertinent part, the Memorandum Decision found the Board erred by not ensuring VA followed appropriate development and/or notice procedures applicable to obtaining Federal employment records. Specifically, the Court found that VA did not inform the Veteran that his Federal employment records did not exist or that the custodian, such as the National Personnel Records Center (NPRC), did not have them. Therefore, the Court noted that VA's finding that further record requests would be futile did not comply with 38 C.F.R. § 3.159(c)(2). See March 2023 CAVC Decision. The Board finds that another remand is warranted in order to ensure that VA substantially complied with its November 2023 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, November 2023 remand instructions directed the RO to contact the Social Security Administration (SSA) and request the Veteran's earnings statements throughout the appeal period (from January 2014). If SSA responds that it cannot provide earnings statements to VA without the Veteran's approval, undertake the necessary actions to obtain any documentation needed from the Veteran to enable VA to obtain copies of his SSA earnings statements. Additionally, it directed the RO to obtain employment records from Fleet Readiness Center Southwest, to include as outlined in https://www.archives.gov/personnel-records-center/civilian-personnel/federal-agencies and pursuant to procedures outlined by the NPRC Civilian Personnel Records, Services for Federal Agencies, including use of Standard Form 127. See November 2023 BVA Decision. In the Veteran's December 2023 VA Form 21-8940 TDIU application, the Veteran indicated his last place of employment was from December 2005 to April 2018 at Fleet Readiness Center Southwest. He provided an address. The Veteran noted he was employed as an aircraft mechanic working 40 hours per week and earning $11,080 per month. See December 2023 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A May 2024 SSA profile showed the Veteran was receiving Title II benefits but not receiving Title XVI. No earning statements appeared to be included with this document. See May 2024 SSA Profile and Benefit Data. On May 13, 2024, the RO sent another letter to the Fleet Readiness Center Southwest. The Veteran received a letter dated the same day indicating that the RO requested evidence from Fleet Readiness Center but that it was the Veteran's responsibility to see that VA receives it, except for any evidence kept by VA, military, or any other federal agency. See May 2024 Initial Private 3rd Party Letter, 21-4192; May 2024 Subsequent Development Letter. On August 26, 2024, a second attempt to obtain the Veteran's employment records from Fleet Readiness Center Southwest was outlined in a letter; the RO used the same address as the May 13, 2024, request. In pertinent part, the instructions specifically noted that "if the records are destroyed or otherwise unavailable, a negative response is requested." A letter was also sent to the Veteran the same day indicating the RO's request. See August 2024 Initial Private 3rd Party Letter, 21-4192; August 2024 Subsequent Development Letter. On October 16, 2024, the RO received returned mail of the May 13, 2024, letter to the Fleet Readiness Center Southwest. On November 4, 2024, the RO received returned mail of the August 26, 2024, letter to Fleet Readiness Center Southwest. See October 2024 and November 2024 Returned Mail. On November 25, 2024, the RO sent a letter to the Fleet Readiness Center Southwest. The RO stated that the May 2024 and August 2024 mail was returned, and this was the RO's third request. The instructions specifically noted that "if the records are destroyed or otherwise unavailable, a negative response is requested." The Veteran was sent a copy letter. See November 2024 other (2x). A November 2024 letter sent to the SSA attempted to obtain a copy of the Veteran's employment and earnings history for the period from January 2014 through present. A copy of the available records was requested to be sent to VA or faxed. Specifically, the SSA was instructed to "please provide a negative response if you do not have any information concerning this Veteran." See November 2024 SSA/SSI Letter. On December 10, 2024, the RO sent a letter to the Fleet Readiness Center Southwest. The RO stated that the May 2024 and August 2024 mail was returned, and this was the RO's fourth request. The instructions specifically noted that "if the records are destroyed or otherwise unavailable, a negative response is requested." The Veteran was sent a copy of the letter. See December 2024 other (2x). On December 24, 2024, the RO sent a letter to the Fleet Readiness Center Southwest. The RO indicated this was the second request for records. The instructions specifically noted that "if the records are destroyed or otherwise unavailable, a negative response is requested." The Veteran was sent a copy of the letter. See December 2024 Third Party Correspondence; December 2024 Subsequent Development Letter. Another letter was sent to the SSA requesting financial records in December 2024. See December 2024 SSA/SSI Letter. A January 2025 letter to the Veteran outlined the steps the RO took in order to obtain employment records, to include contacting Fleet Readiness Center Southwest on May 13, 2024; August 26, 2024; November 25, 2024; December 10, 2024; and December 24, 2024. The RO indicated that Fleet Readiness Center Southwest responded, "no response received." The RO determined that these records could not be located and therefore were unavailable for review. All efforts to obtain the needed information had been exhausted, and based on these facts, determined that further attempts to obtain the records would be futile. A second January 2025 letter to the Veteran outlined the steps the RO took in order to obtain SSA financial records, to include contacting SSA on November 22, 2024, and December 23, 2024. The RO indicated that SSA stated, "no response received." The RO determined that these records could not be located and therefore were unavailable for review. All efforts to obtain the needed information had been exhausted, and based on these facts, determined that further attempts to obtain the records would be futile. See January 2025 Final Attempt Letter (2x). On May 12, 2025, the RO received returned mail of the December 24, 2024, letter to Fleet Readiness Center Southwest. See May 2025 Returned Mail. Upon review, the Board finds further VA's duty to assist requires further attempts be made to obtain employment records in the custody of a Federal department or agency. See 38 C.F.R. § 3.159(c)(1), (2). Both SSA and Fleet Readiness Center Southwest are federal departments. In this regard, the Board notes that no response is not the same as a negative response. Specifically, the RO stated that following requests for employment records from Fleet Readiness Center Southwest, there was "no response received" and that any further attempts to obtain the records would be futile. However, there is no negative response, such as a letter, email, or Report of General Information form, from the Fleet Readiness Center Southwest that affirmatively addresses whether the Veteran was employed during the time period claimed. Moreover, the Board notes that there are specific instructions on the Fleet Readiness Center website for requesting agency records. For instance, instructions for requests regarding Freedom of Information Act (FOIA) include requirements that "must 'reasonably describe' the records sought." For requests to Fleet Readiness Center Southwest, the mailing address instructions include placing "ATTN: FOIA Coordinator" in the address line. Furthermore, the website contains additional contact information, to include a telephone number, fax number, and email address. See https://www.navair.navy.mil/comfrc/FOIA. Additionally, the RO requested a negative response from the SSA in its November 2024 and December 2024 requests for financial records. However, no negative response was provided and the May 2024 SSA profile does not indicate whether SSA financial records were available. As such, VA's duty to assist requires further attempts to obtain SSA financial records, and if unavailable, a negative response is required. As noted above, no response is not the same as a negative response. Accordingly, a remand is warranted for the above stated reasons. The matter is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records and associate the records with the claims file. 2. Obtain the Veteran's Federal employment records from Fleet Readiness Center Southwest, to include as outlined in https://www.navair.navy.mil/comfrc/FOIA and/or pursuant to procedures outlined by the NPRC Civilian Personnel Records, Services for Federal Agencies, https://www.archives.gov/personnel-records-center/civilian-personnel/federal-agencies, including use of Standard Form 127. If necessary, contact the Fleet Readiness Center Southwest directly via telephone, fax, or email in order to obtain such records. If unavailable, ensure a negative response from Fleet Readiness Center Southwest is obtained and associated with the claims file. 3. Contact the Social Security Administration (SSA) and request the Veteran's earnings statements from January 2014 to present. If unavailable, ensure a negative response from SSA is obtained and associated with the claims file. 4. VA must ensure that all relevant procedures are followed and documented, including pursuant to 38 C.F.R. § 3.159(c)(2). If any records are unavailable, notify the Veteran in compliance with 38 U.S.C. § 5103A, and allow him the opportunity to submit any records in his possession. After the above is completed, and if any or all employment records are unavailable, all efforts should be documented and a formal finding that such records do not exist or could not be obtained should be issued. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Garey 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.