Citation Nr: 21007863 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-23 452 DATE: February 10, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1981 to August 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision which, in pertinent part, assigned a temporary total convalescence rating for a low back disability under 38 C.F.R. § 4.30 from August 17, 2011 through September 30, 2011, and a 10 percent rating thereafter, and denied a TDIU rating. Although the Veteran did not formally appeal this matter (via a VA Form 9) following the issuance of a May 2014 Statement of the Case (SOC), he raised the issue during the pendency of his claim for an increased rating for a low back disability. See August 2011 VA Form 21-8940; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). A September 2020 Board decision granted a 40 percent (higher) rating throughout (from July 29, 2011) for the low back disability and remanded the matter of entitlement to a TDIU rating for additional development (as discussed below). Entitlement to a TDIU rating In the September 2020 remand, the Board explained that further development of pertinent evidence is needed with respect to the matter of entitlement to a TDIU rating, as the evidence of record is conflicting regarding the Veteran’s employment status during the period for consideration. In August 2011 (during the pendency of the claim for increase for a low back disability), the Veteran submitted a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); he reported that he last worked in July 2011 due to disabilities of his “back and others.” In a February 2012 statement, he reported that he lost his warehouse job due to lifting limitations secondary to his low back disability. The record thereafter, however, shows he attended college full-time (see October 2012 VA general medical examination report), was enrolled in a work-study program (see May 13, 2014 treatment record), and was employed as a government contractor (see October 18, 2017 and December 1, 2017 treatment records) and suggests also perhaps as a federal government employee (see January 16, 2018 treatment record and August 15, 2018 federal agency employee occupational health letter). Most recently, on February 2020 VA (fee basis) spine examination, he related that he “ended his 30 year career in Logistics because of the back pain.” Based upon the conflicting employment reports in the record, and the changes in reported circumstances during the nine-year interim since he first completed a VA Form 21-8940, the Veteran’s work history remains unclear. In the September 2020 remand, the Board explained that clarification of the Veteran’s employment status is needed, and is critical, for proper adjudication of the TDIU claim. In September 24, 2020 (pursuant to the Board’s September 2020 remand directive), AOJ correspondence the Veteran was directed to submit an accurate, updated VA Form 21-8940; he was advised that such information is critical to properly adjudicate his TDIU claim. To date, he has not responded. His noncompliance frustrates VA’s efforts to properly adjudicate the claim. As he has not provided the information sought, has not waived the one-year period for response (provided under 38 C.F.R. § 3.158(a)) associated with the AOJ’s September 2020 request, and has not indicated that he does not intend to respond, this matter was prematurely returned to the Board, and a remand to afford him the remainder of the full year to respond (and for any further action based on his response) is necessary. The Veteran is advised that a governing regulation (38 C.F.R. § 3.158(a)) provides that where evidence or information sought by VA in connection with a claim for VA benefits is not received within a year following the request, the claim will [emphasis added] be considered abandoned. He is further advised that the employment [for throughout the period for consideration] information sought is critical to proper adjudication of his TDIU claim. The Veteran is also advised that he may waive the remainder of the period afforded for response by indicating in writing that he will not provide the information sought. Expeditious handling of his claim is dependent on the promptness of his response. The matter is REMANDED for the following: 1. Provide the Veteran with VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits), and ask him to complete those forms accurately and completely (accounting for all time during the entire period for consideration), updated to the present, and to submit them. He should be advised that the information therein is critical to proper adjudication of his TDIU claim. Remind the Veteran that he has until September 24, 2021 (one year from the date of the September 24, 2020 letter) to submit the requested forms, and that expeditious handling of his claim is dependent on the promptness of his response. 2. Do not proceed with further development of the claim until the Veteran responds to the request letter or the one-year period afforded by regulation to respond has expired (or indicates he will not cooperate and waives the remainder of the one-year period). If he does not respond to the request for information within the year (or before a year has expired indicates he will not do so, and waives the remainder of the one-year period afforded for response), process the claim further under 38 C.F.R. § 3.158(a). 3. If, and only if, the Veteran submits completed, updated versions of the forms requested above, review the record and arrange for any further development indicated (e.g., to reconcile any inconsistencies in the factual record), before readjudicating the claim for TDIU. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.