Citation Nr: 21003239 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 98-14 870 DATE: January 21, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1990 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 1997 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 1998, the Veteran testified at a hearing before the Board. A transcript of the hearing has been associated with the Veteran’s VA claims file. However, the Veterans Law Judge who conduct that hearing has retired. VA sent the Veteran correspondence in July 2020 asking whether he desired a new Board hearing in conjunction with this appeal. The letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. As the Veteran did not respond, the Board will proceed accordingly. This case has a lengthy procedural history. During the appeal period, the Board has remanded the Veteran’s TDIU claim multiple times and denied it twice. After each denial, the Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court), who vacated and remanded the matter following a Joint Motion for Remand by the Veteran’s attorney and a representative of VA’s Office of General Counsel. The Court last vacated and remanded the matter in October 2011. Since then, the Board has remanded the Veteran’s TDIU claim six times, most recently in September 2020. The case is once again before the Board. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. In May 2019, the Board remanded the Veteran’s claim, directing the RO to (1) ask the Veteran to complete and return an updated VA Form 21-8940 with his complete employment and earnings history during the appeal period, and (2) schedule the Veteran for an examination to address the occupational impairment of his service-connected disabilities. On remand, the RO dutifully sent the Veteran the VA Form 21-8940 solicitation letter, but he did not respond, so in September 2020, the Board remanded to try again with the same result—no answer. But what of the examination? The RO appears to have made no effort to arrange it. The May 2020 Supplemental Statement of the Case does not mention it. Nor does the September 2020 Board remand. Because the Veteran has a right to substantial compliance with the Board’s May 2019 remand, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination with an appropriate healthcare provider to address the occupational impairment resulting from the Veteran’s service-connected disabilities, including his ability to perform the physical or mental acts required in his line of work, from July 1995 to present. (a.) The examiner should obtain the Veteran’s current employment status (employed, unemployed, retired, etc.) and if employed, current occupation with earnings; and (b.) The Veteran’s employment history from July 1995 to present with earnings, length of employment, and whether the work is full-time or part-time. The claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. The examiner should refrain from commenting on whether the Veteran is employable. (Continued on the next page)   3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.