Citation Nr: 21004496 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 09-36 093 DATE: January 27, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Peacetime and Vietnam Era, from January 1963 to November 1965, January 1966 to December 1968, and December 1968 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing conducted in February 2011. A transcript of the hearing is of record. When this matter came before the Board most recently in August 2020, it was remanded for additional development. The Board observes that the additional development has been completed, and the matter returns to the Board for further appellate review. While the Board regrets further delay, for the reasons discussed below, the Board finds that remand is again required to ensure substantial compliance with the prior remand directives and proper development and adjudication of the Veteran’s claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS FOR REMAND Entitlement to a TDIU is remanded. In August 2020, the Board remanded this matter for further development. The Board observes that, in August 2020, VA requested “any available SSA medical records for the [Veteran],” to which the SSA responded that, “[s]uch records do not exist, [and] further efforts to obtain them will be futile.” However, the Board’s remand directed that, “SSA records pertaining to the Veteran’s employment and earnings history, as well as, any disability determinations and medical records pertaining to the Veteran’s service-connected disabilities” be requested. Thus, the Board finds there has not been substantial compliance with the prior remand directives, as SSA records pertaining to the Veteran’s employment and earnings history were not requested. See Stegall, 11 Vet. App. at 271. Further, the Board’s remand directed that a completed VA Form 21-8940 detailing the Veteran’s work history and current employment status be obtained from him. The Board observes that the Veteran was provided with said form in October 2020 and, unfortunately, has never been returned. In December 2020, the Veteran’s representative argued that, “[t]he Board should not lightly presume that mail was timely delivered, or even delivered at all, during the current Covid-19 pandemic and in the month preceding the 2020 national election.” According to the representative, the Veteran’s October 2020 “Appeals Satisfaction Notice” requesting he be provided with “forms and whatever is necessary” suggests he did not receive the form. Because the matter must be remanded for the additional development addressed above, the RO must make another attempt to solicit a completed VA Form 21-8940 from the Veteran detailing his work history and current employment status. Once again, the Board reminds the Veteran and his representative that, “[t]he duty to assist is not always a one-way street.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). According to Wood, “[i]f a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Id. Finally, the Board observes that pursuant to the prior remand directives, the February 2009 VA psychological examination report has been associated with the claims file; however, the November 2008 VA Form 21-8940 and December 2008 VA Form 21-4192 have not. According to an October 2020 notice to the Veteran, the VA forms “are not currently within your file after review.” Because the matter must be remanded for the additional development addressed above, the RO must make another attempt to associate the November 2008 VA Form 21-8940 and December 2008 VA Form 21-4192 with the claims file. Accordingly, this matter is REMANDED for the following actions: 1. Request from the SSA records pertaining to the Veteran’s employment and earnings history. 2. Obtain the Veteran’s November 21, 2008, VA Form 21-8940 and December 17, 2008, VA Form 21-4192 and associate them with the claims file. If efforts to obtain the forms conclude they do not exist, or that further efforts to obtain them would be futile, annotate the record accordingly and notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Solicit a completed VA Form 21-8940 from the Veteran detailing his work history throughout the period on appeal, including his current employment status. (Continued on next page) **The Veteran is encouraged to cooperate with VA by promptly completing and returning VA Form 21-8940 and all other forms provided to him. As stated above, “[t]he duty to assist is not always a one-way street.” See Wood, 1 Vet. App. at 193. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.