Citation Nr: 21064882
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 18-10 036
DATE: October 21, 2021

REMANDED

The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from June 1989 to May 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  It was previously before the Board in April 2021 at which time it was remanded for further development.  There was a December 2020 Board hearing before the undersigned Veterans Law Judge (VLJ), and the transcript is of record.

Again, the issue of entitlement to a TDIU is remanded for further development. Where the schedular rating is less than total, a TDIU may be assigned when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (a).    

Here, the Veteran's combined ratings are sufficient to warrant a schedular evaluation for TDIU from March 12, 2014, the date the Board determined she is entitled to a 70 percent disability rating for PTSD, to November 22, 2016, when the Veteran became entitled to a combined rating of 100 percent.  During the Board hearing, the Veteran indicated that she allowed her professional license to expire because her PTSD left her paralyzed by the continuing education requirements.  One of her mental health providers opined that the Veteran was not able to maintain or sustain substantially gainful employment then or in the foreseeable future, and on 5/22/2015 she resigned from her job to focus on her health and wellbeing.  See 6/15/2015 Medical Treatment Record  Government Facility; 4/14/2017 VA 21-4192.  

In response to the previous Board remand, the RO provided the Veteran with VA Forms 21-8940 and 21-4192 to request documentation of her employment history and assess the status of her current employment.  Unfortunately, no response was received, and a new determination was made within one and a half months of the request.  According to the Veteran's representative, she did not understand the request and was concerned that the prolonged appeal would negatively impact her already service-connected disabilities.  See 9/24/2021 Appellate Brief.  Given the symptoms related to the Veteran's already service-connected PTSD, namely paralysis related to administrative requirements, the Board sees fit to allow her another opportunity to respond.  The Board emphasizes to the Veteran that the information sought is needed in order to ascertain the date as of which she became unable to obtain and maintain substantially gainful employment, and to clarify whether, and to what extent and capacity, she is currently working. 

The matter is REMANDED for the following action:

Provide the Veteran with additional VA Forms 21-8940 and 21-4192.  Document all attempts to obtain employment information and associate with the claims file.  Following a review of the form and any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU.

 

 

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Z. Sloley, 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.