Citation Nr: 21010940
Decision Date: 02/26/21	Archive Date: 02/26/21

DOCKET NO. 16-00 257
DATE: February 26, 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 Army from June 1958 to May 1961. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in April 2019.

This matter was remanded by the Board in May 2019 and in September 2020 for additional development.

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

As the RO has acknowledged, in a June 2019 statement, the Veteran raised the issue of entitlement to a TDIU, asserting that his service-connected hearing loss has made him unable to secure and follow a substantially gainful occupation.  In light of the definition of “substantially gainful occupation” and the non-economic considerations discussed by the Court in Ray, the Board finds that the Veteran may be entitled to a TDIU and remanded the issue in a September 2020 decision for additional development.

In a January 2021 Supplemental Statement of the Case (SSOC), the Veteran’s claim for a TDIU was denied on the basis that the evidence does not show unemployability solely due to service-connected conditions.  It was also noted that several attempts were made to obtain a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.  To date, VA has not received a completed application from the Veteran.

However, in light of the February 2021 argument offered by The American Legion that due to extraordinary circumstances brought by COVID-19, this case should be remanded to provide the Veteran extra time to submit the necessary forms., the Board finds that this case should be remanded.  See Appellate Brief, February 2021.  In light of the Veteran’s assertions, the Board will afford him the benefit of the doubt and again remand his claim for additional development.  

Upon remand, the Veteran is to be given an opportunity to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU.

The matters are REMANDED for the following action:

Give the Veteran an opportunity to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU.

Notify the Veteran that the failure to complete and submit a VA Form 21-8940 may result in the denial of the benefit sought.

 

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Sara Leigh, Attorney Advisor

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.