Citation Nr: 21012792 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-16 741 DATE: March 5, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU), for the period before March 27, 2013 and for the period between July 1, 2013 and January 31, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1976 to July 1976, from December 1990 to May 1991, from January 2003 to January 2009, from May 2009 to April 2010, and from August 2010 to June 2011. This case comes to the Board from a September 2011 decision of the Agency of Original Jurisdiction (AOJ), which granted service-connected compensation for a lumbar spine disability with an initial disability rating of 10 percent. In his timely notice of disagreement (NOD), the Veteran appealed the initial disability rating. In March 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded the lumbar spine increased rating claim in June 2017, September 2018, and January 2020. In September 2020, the Board issued a decision and remand which decided the lumbar spine increased rating issue and related issues of whether the Veteran was eligible for increased ratings for radiculopathy of the lower extremities. In the remand section, the Board explained that certain documents in the electronic claims file, including a decision from the Social Security Administration (SSA) granting disability benefits based in part on the Veteran’s lumbar spine disability, raised the issue of whether he is eligible for a total disability rating based on individual unemployability due to service-connected disorders (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 448-49 (2009). In its decision and remand, the Board explained that, for the period in which the Veteran had been assigned a 100 percent rating (March 27, 2013 to July 1, 2013) the issue of TDIU was moot. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Since the AOJ’s implemented the Board’s September 2020 decision to increase the lumbar spine and related radiculopathy ratings for certain other parts of the appeal period, the Veteran has also been assigned a total 100 percent combined schedular rating since January 31, 2015. Thus, the only issue remaining in this appeal is whether he is eligible for a TDIU rating before March 27, 2013 and/or between July 1, 2013 and January 31, 2015. After the Board remanded the TDIU claim, the AOJ mailed a letter to the Veteran in October 2020, inviting him to complete the standard TDIU application form, which should include information about his employment history, and suggesting that he arrange for former employers to complete copies of VA Form 21-4192 (“Request for Employment Information in Connection with Claim for Disability Benefit”). In introducing this topic to the Veteran, the letter indicates that he “may be entitled to compensation at the 100 percent rate if you are unable to secure and follow a substantially gainful occupation because of service-connected disabilities.” The suggestions to complete the TDIU form and to arrange for his former employer to complete the other form come after the quoted language. Approximately four weeks later, having received no answer from the Veteran, the AOJ issued a decision denying a TDIU rating. A few weeks after that, the AOJ issued a supplemental statement of the case (SSOC), continuing the denial of a TDIU rating and returning the issue to the Board. The most recent VA medical treatment records indicate that, between the date the AOJ mailed the post-remand development letter and the issuance of the November 2020 decision and SSOC, the Veteran tested positive for COVID-19. The records also include a mental health note, dated November 2020. According to this note, the Veteran indicated he had a 100 percent rating. Although the Board regrets the need for further delay, it is necessary to remand this case for at least two reasons. First, it is possible that the Veteran’s illness may have prevented him from providing the requested documents and employment information. The section of the post-remand development letter suggesting that the Veteran should arrange to have his former employers complete a form supports this conclusion. Even if his illness were not debilitating, the Veteran may have concluded that he could not provide the requested information without potentially exposing his former employers or co-workers to the disease. Secondly, the language in the letter introducing the subject of his TDIU claim may, in context, have been misleading. As noted, the letter suggested that the Veteran “may be entitled to compensation at the 100 percent rate if you are unable to secure and follow a substantially gainful occupation. . .” Because the Veteran is already receiving compensation at the 100 percent rate, since January 31, 2015, the letter could potentially have encouraged the mistaken belief that providing the requested information could not result in the payment of additional benefits to him. Under these circumstances, it would have been better for the letter to have explained that he could potentially be eligible for an earlier effective date for his compensation at the 100 percent rate if, before January 31, 2015, he was unable to secure or follow a substantially gainful occupation due to service-connected disabilities. To avoid the possibility of prejudice to the Veteran, the Board will remand this case with instructions to give the Veteran another opportunity to provide the previously requested employment information. The matters are REMANDED for the following action: 1. Provide the Veteran with a blank VA Form 21-8940 (“Veteran’s Application for Increased Compensation Based on Unemployability”) and ask him to complete this form with all available information regarding his employment history. He should be invited to submit any information he believes to be relevant concerning the effects of service-connected disabilities on his employment. If the Veteran provides sufficient identifying information and the appropriate authorization, the AOJ should attempt to contact current and former employers to obtain potentially relevant information about the conditions of his current and former employment, including wage and hour information. THE AOJ’S LETTER TO THE VETERAN SHOULD EXPLAIN THAT HE IS CURRENTLY RECEIVING COMPENSATION AT THE 100 PERCENT RATE, WITH AN EFFECTIVE DATE OF JANUARY 31, 2015, BUT HE COULD POTENTIALLLY BE ELIGIBLE FOR AN EARLIER EFFECTIVE DATE FOR HIS 100 PERCENT RATING, POSSIBLY INCLUDING RETROACTIVE BENEFITS, IF, PRIOR TO JANUARY 31, 2015, HE WAS UNABLE TO WORK DUE TO THE SYMPTOMS OF HIS SERVICE-CONNECTED DISABILITIES. An appropriate period of time should be allowed for response. 2. After reviewing the Veteran’s response to the letter required by part one of these instructions, the AOJ should proceed with any further development which may be necessary to decide whether he is eligible for a TDIU rating during all or part of the relevant period (June 3,   2011 to May 27, 2013 and July 3, 2013 to January 31, 2015). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.