Citation Nr: 21008092 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-36 981 DATE: February 11, 2021 REMANDED Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Air Force from December 1966 until his honorable discharge in December 1970. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in June 2018 and January 2020. Most recently, in January 2020, the Board denied entitlement to service connection for (1) left knee osteoarthritis, (2) right knee osteoarthritis, (3) hypertension, (4) lumbar spine disability, (5) bronchitis, (6) heart disability, and (7) stomach condition, to include ulcers; the Board granted entitlement to service connection for epidermal inclusion cyst; and the Board remanded entitlement to a TDIU for additional development. The Agency of Original Jurisdiction (AOJ), in a July 2020 rating decision, granted service connection for epidermal inclusion cyst with an evaluation of 10 percent effective February 15, 2011. An evaluation of 30 percent was assigned effective April 24, 2019. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In pertinent part, the Board’s January 2020 remand directed the AOJ to provide the Veteran with appropriate notice regarding how to substantiate his claim for entitlement to a TDIU, and requested he submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. In September 2020, the AOJ mailed the Veteran an appropriate notice regarding how to substantiate his claim for entitlement to a TDIU, however, there is no indication that the necessary enclosure, VA Form 21-8940, was included in the September 2020 mailing. In October 2020, the AOJ mailed the Veteran an appropriate notice regarding how to substantiate his claim for entitlement to a TDIU with the necessary enclosure, VA Form 21-8940. While the record does not reveal the September 2020 or October 2020 correspondence was returned as undeliverable, the Board finds there is conflicting information regarding the Veteran’s mailing address. Review of the Veteran’s treatment records shows he was hospitalized at Shreveport Overton Brooks from October 6 to October 20, 2020. On October 20, 2020 the Veteran was discharged from Shreveport Overton Brooks and transferred to Whispering Pines Nursing and Rehabilitation center. A November 2020 Dallas VA Medical Center treatment record noted the Veteran’s temporary mailing address. This above point is both critical and unfortunate, as the Veteran’s TDIU appeal was denied by the AOJ in a concurrently issued November 2020 rating decision and Supplemental Statement of the Case (SSOC) stating, in part, that a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU. Because it is unclear whether the appropriate notice regarding how to substantiate his claim for entitlement to a TDIU and VA Form 21-8940 were properly mailed to the Veteran at his actual address/residence, the Board finds remand is warranted to ensure compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the Board notes under governing regulation the Veteran has a year to submit the evidence and information requested (or indicate that he does not intend to do so). The AOJ has not afforded him the one-year period but has instead returned the record (with development sought by the Board not completed). The Veteran is reminded that VA’s duty to assist him in substantiating his appealed issue is not a one-way street, and thus, he is encouraged to work with his authorized representative and/or any other resource available to cooperate with the AOJ’s efforts to obtain a completed VA Form 21-8940. The matters are REMANDED for the following action: 1. Contact the Veteran or his representative and verify the Veteran’s current mailing address. The AOJ must provide the Veteran with appropriate notice regarding how to substantiate his claim for entitlement to a TDIU and request that he submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Thereafter, the AOJ must undertake any development necessary to properly readjudicate the Veteran’s claim for a TDIU to include: verifying the Veteran’s level of education, verifying the Veteran’s work history, obtaining any necessary contemporaneous or retrospective medical examinations or opinions, and referring the Veteran’s claim to VA’s Director of Compensation for appropriate action as per 38 C.F.R. § 4.16(b) for any period since February 15, 2011, where the evidence demonstrates the Veteran’s service connected disabilities impacted his employability, and yet, his schedular evaluation does not meet the criteria of 38 C.F.R. § 4.16(a). 3. Thereafter, the AOJ must readjudicate the Veteran’s TDIU appeal based on the entirety of the record. If the benefit sought remains denied, provide the Veteran and his representative with a SSOC, and return the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.