Citation Nr: 21001615
Decision Date: 01/11/21	Archive Date: 01/11/21

DOCKET NO. 15-06 622
DATE: January 11, 2021

REMANDED

Entitlement to a finding of total disability based on individual unemployability due to service-connected conditions (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from September 1986 to March 2003.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part denied increased ratings for service-connected low back and neck disabilities.

The Veteran affirmed the schedular denials in an October 2018 decision, which also found that entitlement to TDIU was raised by the record based on the allegations involving the spine. Although the Veteran was in receipt of combined schedular 100 percent rating effective February 11, 2016, for the earlier period a claim for TDIU as part and parcel of the increased rating appeals was inferred.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

The inferred claim needed to be adjudicated by the agency of original jurisdiction (AOJ), and so the matter was remanded. In a supplemental statement of the case (SSOC) dated in July 2020, the RO denied entitlement to TDIU based on the fact that the Veteran had not returned a requested VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The matter is now returned to the Board. 

However, a VA Form 21-8940 is not a jurisdictional or evidentiary requirement.  The claim for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability, here, as part of a claim for increase ratings for the cervical and lumbar  spine disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). No additional form was required, and the claim must be considered on the merits. The July 2020 SSOC failed to do so.

This is not to say that the information expected from receipt of the Form 21-8940 is not helpful or even vital to securing a favorable outcome, and the Veteran risks an adverse decision if he fails to provide necessary information, either directly or by helping VA assist him in securing such.  The duty to assist is a two way street.  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The matters are REMANDED for the following action:

1. Contact the Veteran and request a properly executed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.

The Veteran should be informed that a failure to return the requested information may result in an adverse decision on his claim.

2. After receipt of the form or appropriate time for response, readjudicate the claim of entitlement to TDIU prior to February 11, 2016.  Such may require additional development prompted by the Veteran’s response, to include examinations or referral to the Director, Compensation and Pension Service, for consideration of 38 C.F.R. § 4.16(b).

3. If the benefit sought remains denied, issue an appropriate SSOC and then return the matter to the Board if otherwise in order.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Nolan, Shane D.

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.