Citation Nr: 21066706
Decision Date: 11/01/21	Archive Date: 11/01/21

DOCKET NO. 12-21 127A
DATE: November 1, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 23, 2015, based on substitution is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1967 to September 1970.  He died in November 2020.  The Appellant claims as his surviving spouse.

This matter has a rather extensive procedural history.  Most pertinently, the Board denied entitlement to a TDIU in a June 2018 decision, which was vacated by a May 2019 Joint Motion for Partial Remand (JMPR).  The Board again denied entitlement to a TDIU in November 2019, which was vacated by a June 2021 JMPR.  The matter is now back before the Board.

As to an administrative matter, the record does not indicate that the Board's November 2019 decision to grant a 70 percent disability evaluation prior to March 23, 2015 for PTSD was implemented.  The AOJ adjudications after this decision do not implement the initial 70 percent rating and the subsequent codesheets do not show that it was properly implemented.  The AOJ should verify that the Board's November 2019 grant of an initial 70 percent rating for PTSD was implemented.  

1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 23, 2015, based on substitution is remanded.

The June 2021 JMPR found that the November 2019 Board decision failed to adequately address the contentions of an October 2019 Brief, which included the assertion that the Veteran's employment prior to March 23, 2015 was marginal under 38 C.F.R. § 4.16(a) and that concessions by his employer amounted to a sheltered workplace.  The JMPR also found that the Board failed to address an October 2013 Texas Workforce Commission decision.  

An October 2016 letter to the Veteran provided him proper notice with respect to TDIU claims and afforded him the opportunity to complete a VA Form 21-8940 Application for a TDIU.  The Veteran did not submit a complete 21-8940.  Form 21-8940's provide critical information for adjudication of TDIU claims.  While some of the information that would be obtained by the Form 21-8940 is of record, not all of it is.  Given the JMPR's focus on addressing marginal employment, the Board has determined that a completed Form 21-8940 would greatly aid proper adjudication of this matter.  As a result, Remand to afford the Appellant the opportunity to complete a Form 21-8940 on behalf of the Veteran is appropriate.

The Board notes that the Veteran's contention regarding marginal employment under section 4.16(a) focused on a sheltered work environment and not annual income under the poverty threshold.  However, any information that the Appellant may be able to provide regarding the Veteran's earnings prior to March 23, 2015, the nature of his employment, the date that he last worked, and any other relevant information, would greatly aid the Board in properly adjudicating this matter.  

The matters are REMANDED for the following action:

1. Contact the Appellant and request that she file a completed application for increased compensation based on unemployability (VA Form 21-8940) on behalf of the Veteran. 

2. Verify that the 70 percent disability rating for PTSD prior to March 23, 2015, as granted by the November 2019 Board decision, was properly implemented.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. R. Stephens, 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.