Citation Nr: 20032572 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 14-31 292 DATE: May 8, 2020 REMANDED The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 6, 2017, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from November 2000 to November 2004. Among other commendations, the Veteran was awarded the Overseas Service Ribbon, Combat Infantry Badge, Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism Service Medal. This matter is before the Board of Veteran’s Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that granted an increased rating for his service-connected PTSD to 30 percent disabling, effective January 2012. The Board found that the issue of entitlement to a TDIU was raised by the record in the Veteran’s claim for an increased evaluation for PTSD filed in January 2012 as indicated in the April 2018 Board remand. The April 2018 Board decision remanded the Veteran’s claims for a TDIU for further development as to the Veteran’s employment history, educational history, and to obtain information from the Veteran’s former employers. The Board notes that the Veteran’s claim for entitlement to a TDIU was granted in a January 2020 rating decision, effective May 6, 2017. VA in its January 2020 Supplemental Statement of the Case (SSOC) recharacterized the issue on appeal as entitlement to a TDIU prior to May 6, 2017. Pursuant to AB v. Brown, 6 Vet. App. 35 (1993), the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. The January 2020 rating decision granted the maximum benefit to the Veteran for a TDIU for only a part of the period on appeal. However, the award of a TDIU prior to May 6, 2017, remains in controversy. Therefore, the Board finds that the maximum benefit has not been awarded as a TDIU was not granted for the entire period on appeal. The Board’s focus will be from the date the Veteran filed his claim for an increased rating for PTSD, January 2, 2012, until May 5, 2017, for the issue of entitlement to a TDIU. In January 2020 the Veteran’s representative submitted correspondence on two occasions requesting a 60-day extension before returning the Veteran’s file to the Board as the representative indicated that the Veteran had not been allowed to fairly participate in the ability to develop evidence and respond. The Board finds that the Veteran should be provided an opportunity to develop evidence and respond to the SSOC issued January 2020 as indicated in the remand directives below. Entitlement to a TDIU prior to May 6, 2017 The Veteran contends that has been unable to maintain gainful employment due to his service-connected disabilities. The Board notes that the Veteran has indicated that has worked for the VA from April 2012 to May 2017. However, during this period, the Veteran has indicated that he has worked part-time, full-time, and stopped working entirely for intermittent periods during the window of April 2012 to May 2017. In the April 2018 Board remand development was done to reach out to his former employer who provided a limited amount of information as to the Veteran’s work history and income verification of employment during the window of review by the Board. After thorough review of the Veteran’s claims file the record lacks any income verification on file for the periods of January 2012 to May 2017. The did submit a resume, however it contained no income information. The Veteran’s income information is necessary to determine whether the Veteran is entitled to a TDIU for those periods. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A) (2012); 38 C.F.R. § 3.159 (2018). The matter is REMANDED for the following actions: 1. Contact the Veteran and/or his counsel to request they submit a statement that details: (a.) The Veteran's work history from January 2, 2012, to May 5, 2017, including employer name, dates of employment, whether the Veteran was a full-time or part-time employee, and any interruptions in the Veteran’s employment. (b.) Obtain the Veteran's annual earned income from 2012 to 2017 from the Social Security Administration, the Internal Revenue Service, or income verification from other reputable sources. The Veteran stated in his September 2018 TDIU application that he last worked full time in August 2015 but last worked in May 2017 for a varied number of hours per week. (c.) Identify the poverty threshold for the size of the Veteran’s family, as explained in 38 C.F.R. § 4.16(a) (2018), from 2012 to 2017. (d.) Identify the Veteran’s spouse(s) and their incomes and persons identified as his dependents who resided with the Veteran from January 2012 to May 2017. 2. Based on the information received in Directive #1, determine if the Veteran's earned income exceeded the poverty threshold for the Veteran’s family size, for each year from 2012 to the 2017. For each year the Veteran's earned income exceeded the poverty threshold, expressly identify the amount by which he exceeded it and ask the Veteran's counsel to identify the source of this income. 3. Contact the employer of the Veteran identified in the Veteran’s September 2018 TDIU application and submitted resume to obtain the Veteran’s employment and income history from January 2012 to May 2017. (CONTINUED NEXT PAGE) 4. With consideration of all the evidence of record, including that which has been received after the above development, re-adjudicate the claim for entitlement to a TDIU prior to May 6, 2017. If the benefit sought on appeal remains denied, the Veteran should be provided a SSOC. An appropriate period should be allowed for response from the Veteran and his counsel before the case is returned to the Board, but not before March 31, 2020, per the Veteran’s counsel’s extension requests submitted January 2020. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, Associate 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.