Citation Nr: 21069651 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-19 970A DATE: November 19, 2021 REMANDED Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Navy with active duty from February 1969 to November 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2018, the Veteran and his son testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In March 2019, the Board, among other actions, determined that remand of the Veteran's appealed issue was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to a TDIU is remanded. In pertinent part, the record reflects that the Veteran incurred additional disabilities, diagnosed as a cerebrovascular accident, myocardial infarction, depressive and neurocognitive disorders, centrocecal scotoma of the left eye, and hemiparesis affecting the left arm, leg, and facial features, due to negligence on the part of VA in completing a cardiac catheterization at the Durham VA Medical Center in April 2008. In March 2019, the Board granted the Veteran's appeal seeking VA compensation for the disabilities recounted above, and the Board's allowance was implemented by the AOJ in a September 2021 Decision Review Officer (DRO) decision and September 2021 rating decision, resulting in the assignment of an 80 percent combined evaluation throughout the entirety of the appeal period for consideration (from May 14, 2010, to the present). The crux of the present appeal is the Veteran's claim that the disabilities recounted above have rendered him unable to participate in a substantially gainful occupation since the day of the April 2008 surgery. The record shows that the Veteran was employed as a "seasonal" contract employee with Measurement Incorporated and owned his own landscaping business at the time of the April 2008 surgery. There is substantial evidence that the functional impairment resulting from his service-connected disabilities, particularly his stroke residuals and cognitive impairment, have inhibited his ability to return to either of these occupations; however, it is unclear whether the Veteran's self-owned landscaping business continued to operate and provide the Veteran with monetary income. The AOJ has made several attempts to confirm the point noted above by providing the Veteran several copies of a VA For 8940 throughout the 10-year pendency of the appeal; however, these efforts have been frustrated by the Veteran's inaction, and neither the AOJ nor the Board may reach the merits of the Veteran's appeal without such confirmation. The critical nature of verifying this matter is noted by the applicable regulations and the United States Court of Appeals for Veterans' Claims (Court), with the latter holding that an appellant's failure to provide a completed copy of this Form or the equivalent information may constitute abandonment of the TDIU appeal. 38 C.F.R. § 3.158; Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Alternatively, due to the Veteran's failure to fully cooperate, the Board may have no alternative but to adjudicate the claim simply based on the evidence currently of record. Accordingly, the Board concludes that another remand is necessary to afford the Veteran an opportunity to provide VA with accurate information concerning his employment status throughout the appeal period. He is encouraged to cooperate with the AOJ's efforts and engage his accredited representative in furtherance of completing the Board's remand directives. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *The AOJ must inform the Veteran that his failure to accurately complete the provided VA Form 8940 may result in the denial of his TDIU appeal due to abandonment of the same. 38 C.F.R. § 3.158; Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). The Veteran should be further informed that his failure to fully cooperate may result in the Board having to adjudicate the claim simply based on the evidence currently of record. 2. The AOJ must request the Veteran to verify his personal income from May 14, 2010, to the present, to include the submission of Internal Revenue Service (IRS) W-2 Forms, tax returns, pay stubs, and/or the filings of the privately-held landscaping business which detail how much of the company's/companies' proceeds were attributable to the Veteran. *The Veteran is encouraged to comply with the AOJ's efforts to determine his income from May 14, 2010, to the present, as his failure to do so may result in VA's inability to grant the benefits that he is seeking. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.