Citation Nr: 21063680 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-12 540 DATE: October 15, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2003 to March 2006, including service in Afghanistan from April 2004 to April 2005. He is a Veteran of the Gulf War Era. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). This matter was previously before the Board in June 2020, at which time it was remanded as inextricably intertwined with the Veteran's PTSD increased rating claim. This matter was again before the Board in February 2021 at which time the Board granted entitlement to an evaluation of 70 percent for PTSD from November 4, 2014 and remanded the issue of entitlement to a TDIU to afford the Veteran the opportunity to submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. This matter was again before the Board in July 2021 at which time it was again remanded to afford the Veteran the opportunity to submit a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Service connection was granted in a November 2013 rating decision for posttraumatic stress disorder (PTSD) with an evaluation of 50 percent effective January 30, 2013. Service connection was also granted for hearing loss with an evaluation of 0 percent and tinnitus with an evaluation of 10 percent effective January 30, 2013. The Veteran thereafter submitted an increased rating claim on December 5, 2014. In its June 2020 decision, the Board remanded the Veteran's claim for a rating in excess of 50 percent for PTSD. The Board also found that the record raised a claim for a total evaluation based on individual unemployability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the Veteran's TDIU claim finding it is inextricably intertwined with his increased rating claim. In accordance with the Board's remand instructions, the Veteran was sent a letter on September 29, 2020 requesting a completed VA Form 21-8940 in order to claim entitlement to a TDIU. The Veteran did not respond. In October 2020, the RO denied the Veteran's TDIU claim, finding that he did not submit a VA Form 21-8940 and was currently employed as of January 2020. In its February 2021 decision, the Board remanded the Veteran's TDIU claim. The Board noted in the September 2020 correspondence, the RO requested that the Veteran submit a VA Form 21-8940, and there was no VA Form 21-8940 in the claim file. Therefore, the Board found that much of the information that was needed to make an informed decision on the matter of TDIU eligibility was missing, such as the Veteran's employment history for the last five years that he worked, his total earned income for the past 12 months, and his efforts at trying to obtain and maintain employment. The Board also noted that the Veteran was employed. The Veteran was sent correspondence in February 2021 informing him of possible eligibility for disability benefits at the 100 percent rate and requesting that he submit a completed VA Form 21-8940. The Veteran did not respond. In March 2021, the RO denied the Veteran's claim for a TDIU, finding the Veteran did not lose employment due to his service-connected disabilities. The RO noted that VA had not received a completed VA Form 21-8940 that was required to further consider the Veteran's claim. The RO's decision included a Favorable Finding that the Veteran's service-connected disabilities meet the schedular criteria for entitlement to individual unemployability (as of November 4, 2014). In July 2021, the Board remanded the Veteran's claim for entitlement to a TDIU, finding that there was not substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board noted that in March 2021, the RO issued a Supplemental State of the Case continuing the denial of the Veteran's TDIU claim. The Board determined that the RO's finding that the Veteran did not lose employment due to his service-connected disabilities was at odds with the evidence. Specifically, the Board noted that a February 2016 Veteran Readiness and Employment (VR&E) report indicates that the Veteran lost employment in June 2015 as a mechanic after approximately 7 months "due to an exacerbation of his disabilities." According to the report, the Veteran "lost his temper at work and broke a bay door which caused him to get fired," and "needs intensive treatment before he pursues employment again at this time." Additionally, in March 2017, the Veteran reported to a VA examiner "that his jobs usually last about a year and then he ends up losing his job or 'throwing it away.'" The Veteran had started a tool business and "noted that he is irritable with customers and gets into arguments easily." The Veteran's March 2017 VA Form 9 states an "[i]nability to control my angry [sic] cause extreme amounts of conflict between me [and] co works [sic] especially supervisors." Further, a September 2020 VA examination report indicated that the Veteran stated, "he does have difficulty staying at one job due mainly to his temper, dislike for various things about the job and/or getting fired." Based on this evidence, the Board remanded the claim and directed the RO to provide the Veteran and his representative with another VA Form 21-8940, to be completed in full and returned promptly, regarding all employment during the period on appeal. The RO was also directed to request completed Request(s) for Employment Information in Connection with Claim for Benefits (VA Form 21-4192) from the Veteran's identified employers. Pursuant to the Board's remand, in July 2021, the Veteran was sent correspondence requesting a completed VA Form 21-8940 and VA form 21-4192. An August 2021 Supplemental Statement of the Case indicated that no response to the request for the forms was received from the Veteran. The RO observed that VA records noted that the Veteran was currently employed. The RO once again denied the Veteran's claim for entitlement to a TDIU finding there is no evidence to confirm that he is currently unemployed, or that he has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Unfortunately, the Board finds that remand is again warranted because there is evidence of at least some possible unemployment during the relevant time frame that could be related to service-connected disability and confirmed by further evidentiary development. Most notably, there is a period of time where the evidence shows repeated job loss that may be due to service-connected PTSD, including the evidence noted in the July 2021 decision and the following additional evidence. At a January 2015 VA examination, the Veteran reported employment in automotive repair in 2012 until he "had a blow up with a boss there and was suggested to find other employment" after a year. He then worked briefly at another job, and then "got a better offer" to work with a friend at car dealership as a mechanic (March 2013 to Aug 2014). He stated that the boss "wouldn't guarantee me a raise..." and he quit in Aug 2014. As of the date of the examination, he was employed as a mechanic at a car dealership. He stated "I started getting annoyed with people there..." He described that he doesn't like people and "I get so agitated by people...my fuse is not long at all." He asserted that management told him to bring problems to them "but that is not how I work..." He denied any performance issues at work although he stated, "my memory sucks. I forget stuff... tightening bolts...details. A June 8, 2015, psychiatry note indicated that the Veteran reported he lost this job; he had an angry outburst at work and was then let go. A December 4, 2015, psychology note indicated that the Veteran left his job with plans to work at home. He noted holding several jobs over the prior ten years with the duration of each job decreasing over time. He implicated his psychological symptoms and work-related stress. In November 2015, a former work supervisor submitted a statement. He stated that the Veteran was employed as a service technician from June 28, 2015, to October 27, 2015. He stated that the Veteran is smart, has good values, and was a good automotive technician. He observed that the Veteran has PTSD and that he "appears to be fighting an inner battle that distracts a varying portion of his attention." He indicated that at work this manifests itself as "a reduced ability to pay close attention to repairs he was performing and other daily tasks." He stated that "this can be dangerous for our customers if he were to inadvertently not properly torque wheel lug nuts or other critical fasteners. It also resulted in repeated repair concerns that a man with his ability should not have." In his February 2017 appeal, the Veteran noted that after separation from military service, he could not maintain a steady job due to his PTSD. He reported an inability to control his anger which causes "extreme amounts of conflict" between himself and coworkers and especially supervisors. He noted a complete lack of drive with severe depression causes him to be late, and to not perform to the level expected of him. He noted that since separation from service, he has lost 8 jobs in 10 years. He stated that with all of these jobs, the boss has tried to make cases to fire him, he would notice, and he'd quit. He reported a physical altercation at one job. He stated that for a span of time, "anxiety had completely overtaken my mental, physical and emotional states." An April 2017 VA counseling record indicated that the achievement of a vocational goal was not reasonably feasible due to the following reasons: not compliant with treatment; current substance abuse issues; and chronic inappropriate behavior. The Veteran was found to have a serious employment handicap due to a neuropsychiatric condition; alcohol/substance abuse; withdrawal from society; lack of education/training for suitable employment; and difficulties with communicating. The Veteran also submitted a statement in August 2019 indicating that since October 2015, he lost his business after a motor vehicle accident and it is very difficult to find an employer "to cater to a Veteran with my severity of PTSD." Accordingly, based on the above evidence, the Board finds that the Veteran should be provided an examination to specifically address the impact that his service-connected disabilities have had on his ability to obtain and maintain a substantially gainful occupation. The Veteran is admonished that failure of the Veteran to attend the examination will result in the adjudication of his claim solely based on the evidence of record pursuant to 38 C.F.R. § 3.655(b). Finally, the Board again cautions the Veteran that a claimant has a responsibility to cooperate in developing all facts pertinent to the claim. 38 U.S.C. § 5107. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). As noted in this decision, the Veteran was provided with three opportunities to submit the required employment information and has not yet done so. The evidence set forth above cannot substitute for such information or be used as a basis to potentially grant the Veteran's claim unless the Veteran submits the required employment information in writing. In addition, failure of the Veteran to attend the examination will result in the adjudication of his claim solely based on the evidence of record pursuant to 38 C.F.R. § 3.655(b). The matters are REMANDED for the following action: 1. Provide the Veteran (with a copy to his representative) a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability to be completed and submitted. 2. Provide the Veteran with a VA Form(s) 21-4192, Request for Employment Information in Connection with Claim for Benefits, from all identified employer(s) for the entire period on appeal. 3. Then, regardless of whether additional information is provided by the Veteran pursuant to items 1 and 2, above, schedule the Veteran for an examination to determine whether his service-connected disabilities caused him to be unable to secure or follow substantially gainful employment since December 2014. The examiner should specifically address the impact the Veteran's service-connected disabilities have had on the Veteran's ability to obtain and maintain a substantially gainful occupation. Failure by the Veteran to attend the examination will result in the adjudication of his claim solely based on the evidence of record pursuant to 38 C.F.R. § 3.655(b). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.