Citation Nr: 21014752 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-16 193 DATE: March 15, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1960 to March 1981. This matter is on appeal from a May 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) and was raised by the Board of Veterans’ Appeals (Board) in its January 2018 decision, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As explained in the May 2020 Board decision, the Veteran has never satisfied the schedular TDIU requirements during the period on appeal. In the May 2020 decision, the Board determined that a January 2019 VA examiner’s statement regarding the physical impact of the Veteran’s service-connected disabilities suggested that the Veteran may be incapable of securing or following substantially gainful occupation due to his service-connected disabilities, at least as of January 2019. The Board remanded the matter for the RO to refer the claim to the Director, Compensation Service, or his/her designee, for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The RO did not comply with the Board’s May 2020 remand directives. In the December 2020 Supplemental Statement of the Case, the RO explained that it declined to refer the matter for extraschedular consideration—as explicitly requested by the Board—because the Veteran did not submit a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, following the RO’s requests in December 2018 and November 2020 notice letters. The RO stated that this failure to respond rendered the issue of entitlement to extraschedular consideration for a TDIU moot. The Board disagrees, as there is no provision of law that requires a veteran to submit a completed VA Form 21-8940 before a claim for a TDIU may be referred for extraschedular consideration. This is not to say that the VA form 21-8940 is unimportant in TDIU claims, as this form provides adjudicators with essential information necessary to render an informed determination regarding entitlement to a TDIU, such as the Veteran’s employment history, past income information, and educational attainment. As noted in the December 2020 Supplemental Statement of the Case, the RO has requested the Veteran to complete VA Form 21-8940 on two occasions, and he did not respond. The burden is on the Veteran to substantiate that he is entitled to a TDIU. VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is encouraged to submit VA Form 21-8940 to assist in the development/adjudication of his claim. Given the Veteran’s lack of cooperation following previous requests, the Board declines to order the RO to send any further requests to the Veteran regarding the completion of VA Form 21-8940. Despite the above, the record contains some information regarding the Veteran’s past education and training. While the exact nature of the Veteran’s duties during his full active duty service remains unclear, a DD form 214 indicates that the Veteran was an “information coordinator.” His private treatment records indicate that the Veteran was employed for many years by United States Postal Service as a letter carrier, until his retirement in December 1999. The Veteran’s VA education records indicate that he underwent some postsecondary education in accounting and business/hospitality management, although it is unclear whether the Veteran graduated from college. As a matter of law, veterans are entitled to substantial compliance with Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board must remand this claim for the RO to refer the matter to the Director, Compensation Service, or his/her designee, for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b), as first directed by the Board in the May 2020 decision. The matter is REMANDED for the following action: 1. Prepare a statement detailing the Veteran’s service-connected disabilities, his employment and educational history, his vocational attainment, and all other factors having a bearing on the issue of his entitlement to a TDIU rating, utilizing the information described in this remand. 2. Refer the issue of the Veteran’s entitlement to a TDIU rating on an extraschedular basis to the Director, Compensation Service, pursuant to 38 C.F.R. § 4.16(b), and ensure that the contents of the Veteran’s claims file, to include this remand, are made available to the Director. 3. The Director or the Director’s designee is requested to issue a memorandum addressing whether the Veteran is entitled to a TDIU rating on an extraschedular basis at any point during the period on appeal. The Director or the Director’s designee is requested to summarize the facts and the law relied upon, and to detail the reasons and bases for all findings and conclusions. 4. Upon completing the foregoing and any other developments deemed necessary, readjudicate the Veteran’s claim for a TDIU rating. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and the Veteran should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.