Citation Nr: 21065013
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 11-02 599
DATE: October 22, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service from May 1969 to June 1975.

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

The Veteran testified at a travel Board hearing in August 2017 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder.

Entitlement to TDIU is remanded.

The Veteran has contended that his service-connected disabilities preclude him from obtaining and sustaining gainful employment.  There is no record of a completed VA Form 21-890, which is required to adjudicate the Veteran's claim for entitlement to a TDIU. There is conflicting information as to whether the Veteran completed the form. 

In April 2019, the Board remanded the matter to afford the Veteran the opportunity to submit a VA Form 21-8940.  In March 2020 and January 2021, the RO sent the Veteran correspondences requesting that he complete an up-to-date VA Form 21-8940.  In response, the Veteran has submitted several correspondences indicating that he needed more time to find the form he sent the VA in 2016, rather than completing a new form.   

In an October 2021 appellate brief, the Veteran's representative requested that the Veteran be given another chance to complete a VA Form 21-8940 before adjudication of the claim.  

On remand, the RO should be given a final opportunity to submit a VA Form 21-8940.  If the Veteran does not complete a VA Form 21-8940, VA may lack the information necessary to favorably adjudicate his TDIU claim.  The Veteran is reminded that the duty to assist is a two-way street.  Although the Veteran is adamant that he submitted the form, there is no VA Form 21-8940 of record.  

The matters are REMANDED for the following action:

Provide the Veteran with a new VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of his TDIU claim.  Inform the Veteran that no further extensions will be permitted to find the form he contends was submitted (but not received) in 2016. Rather, if the Veteran cannot immediately locate the 2016 form, then he is instructed to complete a new form. 

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Baskerville

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.