Citation Nr: 21012557 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 20-17 240 DATE: March 4, 2021 ORDER For the appellate period prior to February 26, 2020, entitlement to an initial disability rating in excess of 10 percent for a cervical spine disability is denied. Between February 26, 2020 and September 17, 2020, entitlement to a disability rating of 20 percent, but no higher, for a cervical spine disability is granted. Between September 18, 2020 and October 25, 2020, entitlement to a disability rating in excess of 30 percent for a cervical spine disability is denied. Beginning October 26, 2020, entitlement to a disability rating of 30 percent, but no higher, for a cervical spine disability is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the appellate period prior to February 26, 2020, the Veteran’s cervical spine disability was manifested by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, and muscle spasm, guarding, and localized tenderness not resulting in abnormal gait or abnormal spinal contour, but not by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 2. Between February 26, 2020 and September 17, 2020, the Veteran’s cervical spine disability was manifested by combined range of motion of the cervical spine not greater than 170 degrees, but not by forward flexion of the cervical spine to 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 3. For the appellate periods between September 18, 2020 and October 25, 2020 and beginning October 26, 2020, the Veteran’s cervical spine disability was manifested by forward flexion of the cervical spine to 15 degrees or less, but not by unfavorable ankylosis of the entire cervical spine or incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. For the appellate period prior to February 26, 2020, the criteria for an initial disability rating in excess of 10 percent for a cervical spine disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5237. 2. Between February 26, 2020 and September 17, 2020, the criteria for a disability rating of 20 percent, but no higher, for a cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.71a, DC 5237. 3. Between September 18, 2020 and October 25, 2020, the criteria for a disability rating in excess of 30 percent for a cervical spine disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5237. 4. Beginning October 26, 2020, the criteria for a disability rating of 30 percent, but no higher, for a cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1997 to June 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for the Veteran’s cervical spine disability and assigned an initial disability rating of 10 percent, effective May 4, 2015. By way of procedural background, this matter was previously before the Board in July 2020, at which time the Board remanded the matter to obtain an updated VA examination. The Board also remanded the issue of entitlement to service connection for a bilateral hip disability. In a November 2020 rating decision, the RO assigned a disability rating of 30 percent for the Veteran’s cervical spine disability from September 18, 2020, and a 20 percent rating from October 26, 2020. The RO also granted service connection for right and left hip strains involving limitation of adduction, extension, and flexion. Those awards are considered a full grant of the benefits on appeal for those claims; therefore, the claims are no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). The issue of unemployability has been raised by the record and therefore the issue of entitlement to a TDIU is added to the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009); Akles v. Derwinski, 1 Vet. App. 118 (1991). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board observes that lay evidence and additional VA treatment records were added to the claims file since the RO’s adjudication in the November 2020 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See VA treatment records received December 2020 and January 2021; February 2021 Correspondence; see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). However, review of this evidence reveals that it is duplicative of records that had already been associated with the claims file or not relevant to the claim on appeal. As such, a waiver is not required, and the Board may proceed with adjudication. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability prior to September 18, 2020, a rating in excess of 30 percent between September 18, 2020 and October 25, 2020, and in excess of 20 percent beginning October 26, 2020 Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion (ROM) testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but no greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. DC 5243 provides that that diagnostic code is only assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 is assigned for all other disc diagnoses. Under the Formula for Rating IVDS, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). In this matter, the Veteran is currently in receipt of an initial disability rating of 10 percent for his cervical spine disability prior to September 18, 2020, a 30 percent disability rating from September 18, 2020, and a 20 percent disability rating from October 26, 2020. He asserts that higher ratings are warranted. On review of the evidence, both lay and medical, the Board makes the following findings: (1) for the appellate period prior to February 26, 2020, the manifestations of the Veteran’s cervical spine disability more nearly approximated the criteria for a 10 percent disability rating; (2) between February 26, 2020 and September 17, 2020, the manifestations of the Veteran’s cervical spine disability more nearly approximated the criteria for a 20 percent disability rating; and (3) beginning September 18, 2020, the manifestations of the Veteran’s cervical spine disability more nearly approximate the criteria for a 30 percent disability rating. First, for the appellate period prior to February 26, 2020, the Board finds that the Veteran’s cervical spine disability was manifested by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, and muscle spasm, guarding, and localized tenderness not resulting in abnormal gait or abnormal spinal contour. In making this finding, the Board relies upon the May 2017 VA neck examination report, which reflects initial ROM measurements of forward flexion to 40 degrees, extension to 40 degrees, right lateral flexion to 40 degrees, left lateral flexion to 40 degrees, right lateral rotation to 75 degrees, and left lateral rotation to 75 degrees. Pain was noted on examination during ROM in all planes but did not result in or cause functional loss. The VA examiner noted evidence of pain with weightbearing as well as objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine, writing, “Mild TTP on ROM Cervical.” The May 2017 VA examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions, but no additional loss of function or ROM was found after the repetitions. The examiner indicated that the Veteran was being observed immediately after repetitive use over time and that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that the examination was not being conducted during a flare-up and that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability during a flare-up. The examiner also noted that the Veteran had localized tenderness, guarding, and muscle spasm of the cervical spine not resulting in abnormal gait or abnormal spinal contour and that the Veteran did not have IVDS. VA treatment records reflect the Veteran’s continuing complaints of neck pain, but there are no further records of muscle spasm, guarding, localized tenderness, or ROM measurements relevant to this period on appeal apart from those in the May 2017 VA neck examination report. See January 2016 VA primary care nursing note; January 2016 VA mental health initial evaluation note. As such, the May 2017 VA neck examination report is the most probative evidence of record as to the severity of the Veteran’s cervical spine disability during the appellate period prior to February 26, 2020. Because the May 2017 VA examination did not reveal forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, the Board finds that the manifestations of the Veteran’s cervical spine disability more nearly approximated the criteria for an initial disability rating of 10 percent for the appellate period prior to February 26, 2020. Second, between February 26, 2020 and September 17, 2020, the Board finds that the Veteran’s cervical spine disability was manifested by combined range of motion of the cervical spine not greater than 170 degrees. In this regard, the Board notes that in a Statement in Support of Claim dated February 26, 2020, the Veteran wrote, “It is hard for me to look down for more than five minutes at a time without pain so cooking and reading a book are a (sic) painful activities.” The Board resolves all reasonable doubt in favor of the Veteran to find that his lay report of symptoms in the Statement in Support of Claim suggests a worsening of his cervical spine disability. On March 13, 2020, Dr. J.S., a medical doctor with a specialty in physical medicine and rehabilitation, conducted a private “Independent Medical Evaluation” to assess the severity of the Veteran’s cervical spine disability. Dr. J.S. wrote, “Currently [the Veteran] has daily neck pain. If he has his head and neck flexed, such as when reading a magazine his neck pain increases and he develops increased numbness in his right arm. His neck pain wakes him up at night...He has significant pain when looking up as well as when his head and neck are flexed while reading blueprints.” Physical examination revealed moderate tenderness to palpation over the lower cervical paraspinals and the trapezius muscles bilaterally, and ROM testing showed forward flexion to 45 degrees, extension to 15 degrees (noted to be very painful), right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 30 degrees. ROM measurements were noted to have been taken with a goniometer. Dr. J.S. also stated that the Veteran’s limited cervical extension causes significant functional loss in performing his job. Dr. J.S. did not indicate whether or not the Veteran had IVDS. No further ROM measurements relevant to this period on appeal are available apart from those in the March 2020 private “Independent Medical Evaluation” report; as such, it is the most probative evidence of record as to the severity of the Veteran’s cervical spine disability between February 26, 2020 and September 17, 2020. Because the March 2020 private “Independent Medical Evaluation” report did not reveal forward flexion of the cervical spine to 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, the Board finds that the manifestations of the Veteran’s cervical spine disability more nearly approximated the criteria for a disability rating of 20 percent for the appellate period between February 26, 2020 and September 17, 2020. Third, beginning September 18, 2020, the Board finds that the Veteran’s cervical spine disability is manifested by forward flexion of the cervical spine to 15 degrees or less. In making this finding, the Board relies upon the VA neck examination conducted on September 18, 2020. In pertinent part, the September 2020 VA examiner determined that while the examination was not being conducted during a flare-up, the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up, and pain and lack of endurance significantly limited functional ability with flare ups. The VA examiner was able to describe this functional loss in terms of ROM, noting that the Veteran would have forward flexion to 15 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 35 degrees during a flare up. The September 2020 VA examiner noted that the Veteran did not have ankylosis of the spine or IVDS. The Board acknowledges that a VA neck examination conducted on October 26, 2020 reflects that the Veteran was capable of greater degrees of cervical ROM, to include as estimated after repetitive use over time and during a flare-up. See October 2020 VA neck examination report (VA examiner estimated that pain and lack of endurance would result in forward flexion of the cervical spine to 25 degrees during a flare-up). However, given the proximity in time between the two VA examinations, the Board will resolve all reasonable doubt in favor of the Veteran to find that, during this period on appeal, forward flexion of the cervical spine was, at worst, to 15 degrees, as reflected during the September 2020 VA examination. Therefore, the Board finds that a disability rating of 30 percent is warranted for the Veteran’s cervical spine disability beginning September 18, 2020. As 30 percent is the highest schedular rating for limitation of motion of the cervical spine, consideration of whether the Veteran is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45 is not for application. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Johnston, the Court indicated that where the veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). For the same reasons, as the Veteran here is currently in receipt of the highest schedular rating for limitation of motion, the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016) is not applicable here. See also Sharp, 29 Vet. App. at 33 (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). Moreover, higher ratings are not warranted under either the General Rating Formula or the Formula for Rating IVDS. Although the October 2020 VA examiner noted that the Veteran had IVDS of the cervical spine, she indicated that the Veteran had not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Additionally, neither the September 2020 nor November 2020 VA examiners found that the Veteran had ankylosis of the spine. As such, a rating in excess of 30 percent is not warranted under either the General Rating Formula or the Formula for Rating IVDS. For these reasons, the Board finds that the evidence supports an initial disability rating of 10 percent for the Veteran’s cervical spine disability for the appellate period prior to February 26, 2020, a disability rating of 20 percent beginning February 26, 2020, and a disability rating of 30 percent beginning September 18, 2020. For the sake of completeness, the Board notes that in a July 2020 rating decision, the RO effectuated the Board’s grant of service connection for radiculopathy of the right upper extremity and assigned a disability rating of 20 percent, effective May 4, 2015. The Veteran has not expressed disagreement with the rating assigned. Furthermore, there is no evidence relevant to the period on appeal to support a separate rating for radiculopathy of the left upper extremity. See VA neck examination reports dated May 2017, September 2020, and October 2020; March 2020 private “Independent Medical Evaluation.” Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a request for TDIU is part and parcel of an increased rating claim when raised by the record. Here, in an April 2020 Statement in Support of Claim, the Veteran’s father wrote, “Although [the Veteran] has managed to work during most of this time, he still would go on a periodic binge where we would have no idea where he was until he resurfaced. In fact, right now he is at the end of a week in Tampa where he quit his job, and he would not respond to emails, texts or phone calls. We finally made contact with him yesterday. Due to the COVID 19 crisis, we are trying to get him home. Because of his problems, he lost his apartment and his truck was repossessed.” Additionally, a March 2020 “Termination Letter” reflects that the Veteran was terminated from his employment at a telecommunications company due to his failure to report for a scheduled shift and failure to notify his manager in advance of his absence. Based on the foregoing, the Board finds that the issue of unemployability has been raised by the record. However, the Board lacks sufficient information to make a decision on this issue, as it is unclear whether the Veteran remains unemployed. Thus, on remand, the Veteran should be provided a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran the appropriate notice as to how to substantiate a request for a TDIU. Also provide him with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. In so doing, undertake any appropriate efforts to clarify the Veteran’s current employment status. (Continued on the next page) 2. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.