Citation Nr: 21070280
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 16-36 988
DATE: November 23, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran served on active duty from October 1999 to November 2003.  These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In March 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing.  A transcript of the hearing is of record.

This matter, inter alia, was previously remanded by the Board in July 2021 in order to obtain information regarding the Veteran's employment and income information throughout the entire appeals period. The requested development has not been completed.  Therefore, the Board finds an additional remand is necessary.

Entitlement to a TDIU is remanded.

In the Board's previous July 2021 decision, the Veteran did not submit a formal claim for TDIU but the issue was raised as part and parcel of his claim for an increased rating for lumbar spine strain.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the issue of entitlement to TDIU takes its place as part of an increased rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability).  The Veteran has met the schedular criteria for a TDIU since September 26, 2011, and has been in receipt of a 100 percent rating since June 26, 2018.  However, his employment history is unclear and medical records indicate he would have difficulty maintaining gainful employment.  As such, the Board remanded the issue in order to obtain further information regarding his employment history and income information.  

On July 20, 2021, the RO sent the Veteran a notification letter informing him to complete, sign, and return a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.  To this date, no response from the Veteran has been received.  Regardless, the Board will afford the Veteran another opportunity to provide the VA with necessary information regarding his employment history and income information.  However, the Veteran is reminded that the duty to assist is a two-way street and that his failure to cooperate may result in the Board's adjudication of this claim simply based on the evidence currently of record.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits).  Moreover, his failure to respond may be deemed an abandonment of the claim and could result in its dismissal.  

The matters are REMANDED for the following action:

Provide the Veteran an additional opportunity to submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.  Also inform the Veteran that his failure to cooperate may result in the Board's adjudication of this claim simply based on the evidence currently of record or may be deemed an abandonment of the claim that could result in its dismissal.  

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. DeBoer, 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.