Citation Nr: 25009092 Decision Date: 07/11/25 Archive Date: 07/11/25 DOCKET NO. 15-30 871 DATE: July 11, 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 TDIU, 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, March 2024, and April 2025, the Board remanded the claims for further development. 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. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Here, in April 2025, the Board remanded the matters, for among other things, to obtain outstanding private treatment at non-VA facilities authorized by VA, specifically, from Trinity Medical Center and Merit Health Natchez. Following the remand, the agency of original jurisdiction (AOJ), in April 2025, obtained private treatment records from Merit Heath Natchez; however, the record does not show that the AOJ obtained, or attempted to obtain, treatment records from Trinity Medical Center. Moreover, in May 2025, the Veteran again received authorized care at Merit Health Natchez. A review of the record, nonetheless, does not show that the May 2025 private treatment records from Merit Heath Natchez were obtained. As noted in the April 2025 Board remand, 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. Accordingly, given the heightened duty to assist and the Board's duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. The Veteran and his representative are reminded that VA's duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential to establishing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this regard, the Veteran may provide VA with the outstanding private treatment records (e.g., Trinity Medical Center and Merit Health Natchez) himself to ensure an expeditious resolution of his appeal. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 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 the May 2025 private treatment records from Merit Health Natchez. 2. Obtain the Veteran's VA treatment records for the period from May 2025 to the Present. (Continued on the next page) ? 3. Readjudicate. 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.