Citation Nr: 1343537	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  10-10 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a total disability rating due to individual unemployability resulting from service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at law


ATTORNEY FOR THE BOARD

Bonnie Yoon, Associate Counsel






INTRODUCTION

The Veteran served on active duty with the United States Army from September 1993 to December 1993.

This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In December 2012, the Board found that a claim of entitlement to TDIU had been raised by the Veteran at his July 2102 VA examination when he reported that he had to resign from his last job due to his service connected right ankle disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The matter was remanded to the RO for a VA examination and medical opinion regarding the effect of the Veteran's service-connected disability on his ability to work.  The requested action was taken, and there has been substantial compliance with the remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998), see also Dyment v. West, 13 Vet. App. 141 (1999).   

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

Although the Board regrets the additional delay, further remand is required to secure a complete and accurate record upon which to render a decision.

A claim for TDIU involves consideration of a Veteran's employment history, educational achievement, and vocational attainment.  38 C.F.R. § 4.16(b).  Although TDIU has been raised by the record, there is insufficient evidence of record regarding the factors described above.  A remand is necessary in this case to obtain this information.  The Veteran should be supplied with and asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.  This form includes information helpful to the adjudication of a TDIU claim, as it includes current and recent employment history, as well as information on relevant factors such as education and vocational training. 
VA should also provide all required notice to the Veteran regarding a claim for TDIU.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and provide him with notice of the elements and factors to be considered in a claim for TDIU.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  To facilitate his response, notice should include a specific request for a properly completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 

2.  Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated, to include collecting and verifying information concerning the Veteran's complete educational and occupational history.  Then readjudicate the claim on appeal, to include consideration of whether the claim should be referred to the Director of VA's Compensation and Pension Service for extraschedular evaluation under the provisions of 38 C.F.R. § 4.16(b).  If the benefit sought remains denied, issue an appropriate SSOC and provide the Veteran and his representative an opportunity to respond.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2013).