Citation Nr: A25052688 Decision Date: 06/16/25 Archive Date: 06/16/25 DOCKET NO. 230222-325997 DATE: June 16, 2025 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 December 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2022 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA). In February 2023, the Veteran timely appealed such rating decision by submitting a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and elected the evidence submission docket. In April 2024, the Board denied entitlement to a TDIU and, thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In January 2025, the Court granted the Veteran's and the Secretary's (the parties') Joint Motion for Remand, which vacated the April 2024 decision and returned the matter to the Board for further appellate consideration. Based on the Veteran's election of the evidence submission docket, the Board may only consider the evidence of record at the time of the October 2022 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, as the Board is remanding the instant claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of such claim. 38 C.F.R. § 3.103 (c)(2)(ii). Entitlement to a TDIU. As relevant, in the January 2025 JMR, the parties observed that certain private treatment records, identified as those from Midwest Nephrology dated in May 2019 and November 2019, which likely pertain to treatment for the Veteran's service-connected diabetic nephrology, were scanned into Veterans Health Information Systems and Technology Architecture (VistA), but were not located in his claims file. Additionally, while not identified by the parties, the Board observes that his VA treatment records reflect treatment for left foot pain through St. Luke's East Hospital in October 2019, which may possibly be related to his service-connected diabetic peripheral neuropathy of the left lower extremity; however, such records are on file. Further, while the Veteran provided a December 2018 statement from Blue Springs Family Care reflecting that such facility treated him for his service-connected diabetes mellitus and tinnitus, records from such facility were not requested or obtained. Therefore, the Board finds that remand is necessary to cure such pre-decisional duty to assist error by obtaining the scanned documents pertaining to the Veteran's non-VA treatment through VistA Imaging and providing him with an opportunity to submit, or authorize VA to obtain, all outstanding private treatment records. The matter is REMANDED for the following action: 1. All outstanding relevant treatment records that have been scanned into VistA Imaging should be associated with the file, to include those from Midwest Nephrology dated in May 2019 and November 2019, and those from St. Luke's East Hospital dated in October 2019. In this regard, the Board notes that it is requesting copies of the underlying private medical treatment records that were scanned into VistA Imaging, not simply documentation that such records exist. All efforts to obtain such records from VistA. 2. Request that the Veteran submit, or authorize VA to obtain, all outstanding private treatment records to include those from Midwest Nephrology, St. Luke's East Hospital, and Blue Springs Family Care. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. Make least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Sharrocks-Marchione 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.