Citation Nr: 21020904
Decision Date: 04/08/21	Archive Date: 04/08/21

DOCKET NO. 14-38 816A
DATE: April 8, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service from July 2001 to July 2005, to include service in Iraq.  He attended a hearing before a Veterans Law Judge (VLJ) in August 2016.  The hearing transcript is associated with the record.  This issue was remanded in July 2018 as inextricably intertwined with other issues on appeal that have since been service connected.

A March 2020 rating decision granted service connection for sleep apnea, scar of the right lower extremity, and scar of the right hand.  The Agency of Original Jurisdiction’s (AOJ) grant of service connection for these issues constitutes a full award of benefits sought on appeal.  See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).  The Veteran has not initiated an appeal with respect to the effective dates assigned and has provided no additional argument.  Therefore, as the AOJ granted the benefit sought on appeal, these issues are no longer before the Board.  Shoen v. Brown, 6 Vet. App. 456 (1994).  

Unfortunately, the TDIU issue was not sufficiently developed prior to adjudication of the claim in the March 2020 supplemental statement of the case (SSOC) and additional remand is required.  In this case, the Veteran has not submitted a VA Form 21-8940, and his work history including the dates and circumstances of his employment, whether concessions were made due to disability, or the reasons for his termination are unclear.  As there is no verification of the Veteran’s work history further development is necessary to attain this information.  A VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) should also be obtained from each of the Veteran’s employers.

The Veteran is advised that the duty to assist is not a one-way street, and failure to cooperate in providing pertinent information and evidence in his TDIU claim may result in an adverse decision.

Afterwards the AOJ should complete any additional development which flows from the information provided by the Veteran or otherwise obtained by VA, to include (if applicable) referring the TDIU claim to the Director of Compensation Services for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b).  

The matters are REMANDED for the following action:

1.  Further develop the TDIU claim, to include verifying employment and reasons for termination.  Have the Veteran complete and return VA Form 21-8940 to provide information as to his occupational and educational history.  He should take care to properly identify his most recent employers, since 2010, to enable VA to do follow-up development.  The Veteran should be informed that these or other statements of his education and employment history are important to his TDIU claim.  

2.  Have the Veteran provide a VA Form 21-4192 to each employer identified on his VA Form 21-8940. 

3.  The AOJ should then complete any additional development which flows from the information provided by the Veteran or otherwise obtained by VA, to include referring the Veteran’s TDIU claim to the Director of Compensation Services for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b), if applicable.

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Bryant, Jeana R

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.