Citation Nr: 20022529 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 19-27 920 DATE: April 1, 2020 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2010 to January 2017. This matter comes on appeal before the Board of Veteran’s Appeals (Board) from a November 2017 rating decision of the Veteran Affairs Regional Office (RO). The Veteran waived a hearing before the Board in her September 2019 substantive appeal, via a VA Form 9. Entitlement to a TDIU is remanded. The Veteran contends that she is entitled to TDIU because her service connected mental disabilities impact her ability to work. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran is currently service-connected for major depressive disorder with anxiety disorder and insomnia disorder, rated as 70 percent disabling from January 7, 2017; migraines including migraine variants, rated as 30 percent from January 7, 2017; right hip impairment of thigh, right ankle strain, left ankle strain, hallux valgus, each rated as 10 percent disabling from January 7, 2017; left hip strain (impairment), rated as 10 percent disabling from May 17, 2018; left hip strain (extension), right hip strain (flexion), bilateral plantar fasciitis with pes planus, sinusitis, rhinitis, and scar left first digital metatarsal, each rated as noncompensable from January 7, 2017; left hip strain (flexion) and scar left first digital metatarsal rated as noncompensable from June 8, 2018. Her combined disability ratings throughout the period on appeal equate to 90 percent. Therefore, she meets the schedular requirement for a TDIU. Nonetheless, the inquiry does not end there. The question in a TDIU claim is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the Veteran asserted in her substantive appeal that she was unable to perform gainful employment due to her mental health disabilities. (See September 2019 VA Form 9). The Veteran states that she has been employed at Freddy’s Frozen Custard and Steakburgers, Temple Mart, and Progressive Casualty Insurance, but her mental health disabilities prevented her from performing the basic functions of these jobs or any other positions. In September 2017, the Veteran was given a VA examination, the report of which reflects a diagnosis of major depressive disorder with additional anxiety and insomnia disorders. The examiner opined that the Veteran had occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, and mood. However, the Board finds that there is not enough information to complete its analysis because a Veteran’s Application for Increased Compensation for Unemployability (VA Form 21-8940) has not been found in the record. In October 2017, the RO requested that the Veteran complete and submit a Veteran’s Application for Increased Compensation for Unemployability (VA Form 21-8940), but the record shows no evidence that it was ever received. In November 2017, the RO denied the Veteran’s claim for TDIU and listed the missing VA Form 21-8940 as a rationale for why the RO could not find that the Veteran was unable to secure or follow a substantially related gainful occupation. This evidence of record is insufficient to grant a TDIU at this time because more information is needed regarding the Veteran’s employment status, work history, and education. As a result, the Board finds that a remand is necessary so the Veteran can submit (VA Form 21-8940), a Veteran’s Application for Increased Compensation for Unemployability to further the development of the Veteran’s claim. The matters are REMANDED for the following actions: 1. Provide the Veteran with another opportunity to submit (VA Form 21-8940), Veteran’s Application for Increased Compensation for Unemployability. Request that the Veteran provide specific dates of employment and income information for each employer previously mentioned and any other positions she held during her appeal such as: a) Freddy’s Frozen Custard and Steakburgers, b) Temple Mart, and c) Progressive Casualty Insurance. 2. Readjudicate the Veteran’s claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran and her representative a supplemental statement of the case (SSOC) and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Owaiian Jones, Law Clerk 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.