Citation Nr: 21063706
Decision Date: 10/15/21	Archive Date: 10/15/21

DOCKET NO. 15-39 027
DATE: October 15, 2021

REMANDED

Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1971 to February 1973.  The Veteran served in Vietnam and received the Combat Infantry Badge.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In May 2019 and May 2021, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development.  Unfortunately, while the Board regrets the additional delay, another remand is necessary.  

Entitlement to TDIU on an extraschedular basis is remanded.

The Board previously remanded this matter to ask the Veteran to identify all outstanding treatment records and complete a VA Form 21-8940, application for a TDIU.  In June 2021, the AOJ did request this evidence from the Veteran as directed.  However, the Veteran failed to respond.  Thus, the matter was subsequently denied.  

In an October 2021 brief, the Veteran's representative asserted that the AOJ only provided 60 days to the Veteran to submit the requested documentation, which the representative asserted was unreasonable given the COVID-19 pandemic.  Thus, the representative requested an extension to afford the Veteran additional time to submit the necessary form.  In light of the representative's contentions, the Board finds that in order to give the Veteran additional time to submit the requisite form, a remand is necessary. 

The Board reminds the Veteran that the duty to assist is not always a one-way street. If a veteran wants 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.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Veteran must submit the requested form so that this matter may be properly adjudicated. 

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-8940 as well as any other necessary documentation and submit it to VA.  Inform the Veteran that these forms are necessary to properly adjudicate this issue.  If the Veteran submits the necessary evidence, additional development deemed necessary to adjudicate the TDIU claim should then be undertaken.  

 

2. Readjudicate the claim.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.N. Moats

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.