Citation Nr: 21015621 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-47 003 DATE: March 17, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1974 to February 1975, with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). The claim was previously remanded by the Board in May 201, January 2015, March 2018, and March 2020, at which time the Board also denied the Veteran’s claim for an increased rating for his right knee disability. As the Veteran does not currently meet the threshold criteria for the grant of a schedular TDIU under 38 C.F.R. § 4.16(a), in its March 2020 remand, the Board referred the Veteran’s claim to VA’s Director of Compensation Service, for consideration and adjudication of the question of whether the Veteran is entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In October 2020, a memorandum by a Decision Review Officer with VA’s Decision Review Operations Center recommended a denial of the Veteran’s claim on extraschedular basis, and in a December 2020 decision the Director of Compensation Service concurred. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). The most recent treatment notes associated with the electronic claims file are dated December 2019 and January 2020. These treatment notes indicate that in December 2019, the Veteran was doing well following his second total right knee replacement surgery, and that although he had completed a course of physical therapy, an additional course of therapy was ordered. The January 2020 treatment notes reflect that the Veteran continued to improve with physical therapy and was no longer using an assistive walking device. In contrast, during a December 2020 VA examination, the examiner observed that the Veteran had an “antalgic (limping) gait” and was using a cane for ambulation. Furthermore, the Veteran reported that because of his right knee disability he was unable to pass a Department of Transportation physical examination required to retain his license to operate a tractor trailer. See VA Knee and Lower Leg examination report dated December 4, 2020. As the record suggests that there may be outstanding treatment records relevant to the Veteran’s claim, remand to obtain these records is warranted. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). Additionally, it is unclear from the record on what basis the Veteran was granted Social Security Administration (SSA) benefits effective in 2019 as no disability determination was included with the records received from that agency. Therefore, those SSA records should be obtained on remand. Lastly, in his December 2007 application for a TDIU, the Veteran stated that he became too disabled to work, effective February 7, 2007. However, a work history report submitted by the Veteran to SSA in November 2019 reflects that he was employed full time as a commercial truck driver from November 2004 until the third week of June 2018. See SSA Work History Report dated November 6, 2019. As the Veteran’s claim form has not been updated in 14 years, on remand the Veteran should be requested to submit an updated TDIU application. The Board emphasizes that the Veteran maintains the ultimate burden to establish entitlement to TDIU. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Moreover, VA’s duty to assist is a two-way-street; if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Request directly from the Social Security Administration, complete copies of the determination(s) on a claim for disability benefits from that agency, together with all outstanding medical records that served as the basis for any such determination(s). 3. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment and physical therapy from non-VA health care providers, including Evans Army Hospital and affiliated clinic(s) and the United States Air Force Academy Clinic/10th Medical Group. Allow a reasonable time for the Veteran’s reply. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 4. Provide the Veteran with (a) an Application for Increased Compensation based on Unemployability (VA Form 21-8940) and (b) notice on how to substantiate the claim. Ask that he return the completed application to VA. 5. After completing any additional development deemed necessary, readjudicate the remanded TDIU claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.