Citation Nr: 21011250 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-15 748A DATE: March 1, 2021 REMANDED 1. Entitlement to a rating in excess of 50 percent from July 1, 2012, to August 7, 2013, from October 1, 2014, to July 23, 2019, and from September 1, 2020, for total right shoulder arthroplasty to correct recurrent dislocation of right shoulder, including degenerative osteoarthritic changes (right shoulder condition) is remanded. 2. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded this matter in March 2018 and January 2020. The Board finds there has been substantial compliance with its January 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Subsequent to the January 2020 remand, it was noted in an August 2020 supplemental statement of the case that “on February 6, 2020, we received your completed VA Form 21-4142a. However, to date, we have not received your completed VA Form 21-4142. Therefore, these records could not be obtained.” This statement is contradictory. On remand, the Board finds that records should be obtained as indicated on any completed VA Form 21-4142a submitted in February 2020. If this form is deficient in any manner, the Veteran should be afforded an opportunity to submit a completed VA Form 21-4142/21-4142a. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirements in 38 C.F.R. § 3.155 (a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to TDIU. Id. The Board finds that the Veteran has raised the question of entitlement to a TDIU. To this point, the Veteran argued in July 2013, written on a March 2012 VA treatment record, that he had been unable to work or go to school due to his medications and pain, doctors’ appointments, and examinations. The RO previously denied entitlement to a TDIU in a September 2006 decision, stating that the Veteran did not provide complete addresses for his former employers. As such, the Board finds that the Veteran should be afforded an opportunity to submit a completed VA Form 21-8940 on remand. The matters are REMANDED for the following action: 1. Records should be obtained as indicated on any completed VA Form 21-4142a submitted in February 2020. If this form is deficient in any manner, the Veteran should be afforded an opportunity to submit a completed VA Form 21-4142/21-4142a. The procedures set forth in 38 C.F.R. § 3.159 (c)(1) must be followed. 2. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, with instructions to return the form to the RO. 3. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include requesting, with the Veteran’s assistance, all records from his previous employers, including any medical records and/or administrative decisions pertaining to disability benefits. All actions to obtain the requested records should be fully documented in the electronic claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 4. Then, readjudicate the Veteran’s claims. If the benefits remain denied, the Veteran and his representative should be provided with a supplemental statement of the case, to include a review of all new medical evidence, and provided an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration if otherwise in order. R. M. KELLY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.