Citation Nr: 21006517 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-03 825 DATE: February 4, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1967 to May 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Board remanded this matter to the RO for further development. Entitlement to a TDIU Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Since issuance of the last Supplemental Statement of the Case (SSOC) in November 2020, additional VA medical records, relevant to the issue on appeal, have been associated with the Veteran’s claims file. Specifically, a VA examination, opinion, and treatment records were added to the clams file after the November 2020 SSOC but were not considered by the Agency of Original Jurisdiction (AOJ) before the Veteran’s appeal was transferred to the Board. The Board notes that applicable VA regulations require that pertinent evidence received by the RO prior to the transfer of the matter to the Board must be referred to the appropriate rating or authorization activity for review and preparation of an SSOC. 38 C.F.R. § 19.37. Accordingly, as the record does not show that the AOJ has readjudicated the claim with consideration of the additional, relevant evidence of record received prior to transfer of the record to the Board, a remand is required for the issuance of an SSOC. 38 C.F.R. § 19.31, 19.37. Additionally, the evidence reflects that the Veteran worked part time with his church during portions of the appeal period as a Pastor. Specifically, the August 2012 posttraumatic stress disorder (PTSD) VA examination reflects that the Veteran’s work at his church occupied a lot of his time while a July 2019 VA treatment record reflects that the Veteran worked part time with his church but took a leave of absence in October 2015 after experiencing difficulty being in the pulpit in front of people and stopped preaching one year later. In his September 2020 VA Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time in February 2009 but that he became too disabled to work in October 2016. See VA Form 21-8940. Based on the available information, it is not clear if the Veteran’s work with his church was gainful employment. Accordingly, on remand, the AOJ should request from the Veteran evidence pertaining to his church work, including how many hours per week he worked as well as his annual income for each year he claims to have been precluded from gainful employment during the appeal period. The Board notes that information such as tax returns during these years as well as any statement from the Veteran may be beneficial in supporting his claim. The matters are REMANDED for the following action: 1. Invite the Veteran to submit an additional statement or supporting documentation regarding his church work during the appeal period (i.e. from March 2011), including how many hours per week he worked as well as any other information about his employment and income history for each year in which he claims to have been precluded from maintaining gainful employment due to his service-connected disabilities. 2. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment from March 2011 due to service-connected disabilities and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 3. Then, readjudicate the TDIU claim on appeal based on the entirety of the evidence. If any benefit sought remains denied, issue a SSOC and allow the Veteran and his representative an appropriate period of time to respond. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.