Citation Nr: 21070697 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-10 806 DATE: November 24, 2021 REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from April 2006 to October 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in June 2021, where, in pertinent part, the issue on appeal was remanded for additional development. For the reasons discussed below, remand for further development is again necessary. As such, the Board need not address remand compliance at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Entitlement to a TDIU is Remanded VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue are to be addressed. 38 C.F.R. § 4.16(a),(b). During the course of this appeal, in lay statements and in testimony at the April 2021 Board virtual hearing, the Veteran has advanced being unemployable due to symptoms of the service-connected posttraumatic stress disorder (PTSD); however, there is other evidence suggesting non-service-related causes of unemployability. In May 2021, VA received a letter from the Veteran's prior employer conveying that PTSD symptoms impacted the Veteran's work performance, as would be expected from a 70 percent disability rating; however, at the conclusion of the letter the prior employer noted that the Veteran was terminated due to the overall health. VA treatment records reflect that the Veteran is treated for a number of non service connected disabilities. Significantly, per a December 2020 VA treatment record, the Veteran had been laid off from work in July 2020 and was supposed to return in November 2020; however, the Veteran conveyed being hindered from returning to work due to non service connected gastrointestinal problems. In a subsequent May 2021 VA treatment record in which the Veteran was seeking further treatment for non service connected gastrointestinal problems, the Veteran conveyed being unable to work at all since the gastrointestinal symptoms began on or about February 2020. As there is significant contemporary medical evidence suggesting that the Veteran's unemployability may be due to a combination of service-connected and non service connected disabilities, the Board finds obtaining a VA occupational evaluation may assist the Board in its determination as to whether the service connected PTSD alone precludes substantially gainful employment. Finally, the Board notes that the employment letter received in May 2021 indicates that the Veteran had full-time substantially gainful employment from January 2017 until sometime in 2020. At the April 2021 Board virtual hearing, the Veteran testified to last working in March 2020; however, as discussed above, some VA treatment records indicate that the Veteran last worked in July 2020. In its June 2021 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to send the Veteran a new VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which may have clarified this discrepancy. The Veteran was informed that failure to complete the Form could result in a denial of the TDIU claim. Unfortunately, the Veteran did not assist in his own claim by submitting the requested updated VA Form 21-9840. The Veteran is advised that failure to provide the updated VA Form 21-9840may be the basis for denial of the claim. See 38 C.F.R. § 3.158. The Board will direct the AOJ to verify the Veteran's last date of employment in 2020 with the prior employer, via submission of a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The matter is REMANDED for the following action: 1. The Veteran should complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, providing all the specific information requested. Failure to fully complete and return this form may result in denial of the TDIU claim. See 38 C.F.R. § 3.158(a). 2. The AOJ should send the Veteran's prior employer BW&D (initials; see April 2021 letter, received in May 2021, for full company name and mailing address) a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, and ask that the form be completed by the proper records custodian. Of particular interest to the Board is the Veteran's last day of full-time employment. 3. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning PTSD. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the PTSD, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 4. Associate with the record all VA treatment records pertaining to the treatment of PTSD, not already of record, for the period from October 2021. 5. Ask a VA vocational or similar occupational specialist to evaluate the effect of the service-connected PTSD on employment-related tasks (the ability to obtain or maintain substantially gainful employment). Specifically, the VA examiner is directed to assess the extent of functional and industrial impairment resulting from the service-connected PTSD. In particular, the evaluation should address whether the service-connected PTSD symptoms and occupational impairment are so disabling as to render the Veteran unable to perform any level of work, and/or are so disabling as to prevent training for positions at which the Veteran could work. In rendering this opinion, the examiner should address the VA treatment records from 2020 and 2021 indicating that non service connected gastrointestinal symptoms were preventing the Veteran from returning to work. A medical, educational, and employment history should be taken. The Veteran's age and the effects of non service connected disabilities cannot be factors for consideration in making the determination; however, the effects of treatments and medications used to treat the service-connected disabilities should be considered in the opinion. A rationale for all opinions and a discussion of the facts should be provided. If the VA examiner assesses that the Veteran is unable to perform any level of work and/or obtain training for work due to service-connected PTSD, the VA examiner should identify, based upon the lay and medical evidence of record, when the service-connected PTSD symptoms first rendered the Veteran unemployable. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.