Citation Nr: 21073161
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 14-38 330A
DATE: December 7, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from July 1985 to July 2005.

As a matter of procedural background, this appeal previously came before the Board in December 2019, at which time the Board granted a rating of 70 percent for generalized anxiety disorder with panic attacks and major depressive disorder (anxiety disorder) prior to August 23, 2017, but declined to grant a rating in excess of 70 percent for that disability for any period on appeal.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in January 2021, the Court issued a joint motion for partial remand (JMPR), which vacated the Board's prior decision regarding a rating in excess of 70 percent for her anxiety disorder and remanded that issue to the Board for further appellate review.  Pursuant to the JMPR, the parties agreed that the Board erred when it failed to consider entitlement to TDIU as part and parcel of the increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Accordingly, in May 2021, the Board included the issue of entitlement to a TDIU as part of this decision and remanded it for additional development, to include the completion of a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 

Upon remand, the Veteran did not complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, as requested by the RO in August 2021.  Because VA last asked the Veteran to complete and submit the VA Form 21-8940 less than a year ago and the record suggests she may not be working due to her service-connected disabilities, the Board will give the Veteran one more opportunity to provide the information requested on such form.

The AOJ should provide Veteran with an additional opportunity to complete this form. The Veteran should be advised that absent a competed VA Form 21-8940, entitlement to TDIU may be denied if one is not submitted following this remand. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012).

The matters are REMANDED for the following action:

1. Notify the Veteran that she may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of her service-connected disabilities and their impact on her ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

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2. Request again that the Veteran provide a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.

Notify the Veteran that the failure to complete and submit this form may lead to the denial of this benefit.

 

 

Joshua Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jordan, Jacquelynn

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.