Citation Nr: 21013972
Decision Date: 03/11/21	Archive Date: 03/11/21

DOCKET NO. 13-03 197
DATE: March 11, 2021

REMANDED

Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1965 to April 1969.

This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision that denied entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder.  

In April 2017, because the Veterans Law Judge (VLJ) who conducted a prior hearing in September 2012 had retired, the Veteran testified at a hearing before the undersigned VLJ in Boston, Massachusetts.

In February 2018, the Board granted a 70 percent evaluation for the Veteran’s PTSD for the appellate period prior to February 3, 2009, and found the record raised a claim for a TDIU as an included claim within the Veteran’s claim for an increased rating for his PTSD.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability).  Accordingly, the Board took jurisdiction over the claim for a TDIU, and remanded it to the Agency of Original Jurisdiction (AOJ) for additional development.

Most recently, the claim for entitlement to a TDIU was remanded in September 2020 for additional development.

A TDIU due to service-connected disabilities is remanded.

Unfortunately, another remand is required in this case.  Additional relevant evidence, consisting of VA Hearing Loss and PTSD examination reports dated in December 2020, were associated with the Veteran’s file following the issuance of the November 2020 supplemental statement of the case.  The Veteran did not provide specific waiver of AOJ review of this evidence.  Therefore, a remand is required for the issuance of an additional supplemental statement of the case.  See 38 C.F.R. §§ 19.31, 19.37.

Further, the development in regard to obtaining the Veteran’s complete records related to his CWT and/or the VA vocational rehabilitation program does not appear to have been started or completed.  As a result, a remand is also needed for compliance with the Board’s prior remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (The Board remand confers a right on a claimant to compliance with the remand order.)

This matter is REMANDED for the following action:

1. Make arrangements to obtain the Veteran’s VA treatment records, dated from October 2020 forward.

2. Make arrangements to obtain the Veteran’s complete records, if available, related to his CWT and/or the VA vocational rehabilitation program.  If these records are not available, a negative reply is required.

3. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal.  If the benefits sought are not granted, the Veteran and his attorney must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 

 

P. M. DILORENZO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Buck Denton

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.