Citation Nr: 21023548 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-14 836 DATE: April 20, 2021 REMANDED Entitlement to a total evaluation 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 April 1971 to April 1973. This matter comes to the Board of Veterans' Appeals (Board) from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In November 2013, the Veteran presented oral testimony in support of his appeal at a board hearing that was conducted by a Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. The Veteran appeal was remanded by the Board in March 2014 to ensure that VA fulfilled its duty to assist the Veteran. The Veteran’s appeal was returned to the Board, who denied such in a May 2017 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in December 2018, the Veteran’s attorney and a representative of VA’s Office of General Counsel filed a Joint Motion for Remand. In a December 2018 Order, the Court vacated the Board’s May 2017 decision and remanded the matter for readjudication in light of the Joint Motion. In June 2019, the Board, again, remanded the Veteran’s appeal to the AOJ for actions consistent with the parties’ agreements in the December 2018 Court-endorsed Joint Motion. In September 2020, the Board sent the Veteran a letter conveying that the VLJ who conducted the November 2013 hearing was no longer employed by the Board, and he was afforded an opportunity to participate in another such hearing. The Veteran responded to this letter in the negative in October 2020, and the Board remanded the Veteran’s appeal again in November 2020. The Board’s most recent remand directives and the subsequent actions of the AOJ will be further discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. 1. Entitlement to a TDIU on an extraschedular basis is remanded. As noted previously by the Board, the Veteran’s sole service-connected disability, posttraumatic stress disorder (PTSD) is evaluated 30 percent disabling throughout the entirety of the appeal period (from November 20, 2008, to the present). As such, he does not meet the criteria for a TDIUA on a schedular basis under 38 C.F.R. § 4.16 (a), and thus, the appeal must be considered on an extraschedular basis under 38 C.F.R. § 4.16 (b). Through the extensive pendency of the Veteran’s appeal, recounted above, he has been requested to provide information concerning his occupational and educational histories, as such are significant points of the benefits he seeks. Unfortunately, he has not provided this information as requested by VA; specifically, he has not submitted a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) despite being provided with the form on several occasions. As agreed by the parties in the December 2018 Joint Motion, the crux of the Veteran’s appeal is whether his employment during the appeal period meets the definition of a “sheltered environment,” which would equate to marginal employment rather a substantially gainful occupation. Cantrell v. Shulkin, 28 Vet. App. 382, 387-88. In pertinent part, this determination must be made in consideration of whether his former employers provided the Veteran accommodations to account for the functional impairment stemming from his service-connected PTSD. Unfortunately, the Board has been, and is, unable to address this critical matter due to Veteran’s nonresponse to VA’s request for information regarding his employers during the appeal period, to include the named owner of an insurance business (see the November 2013 hearing transcript at page 5) and the Veteran’s son. As such, it would be improper for the Board to readjudicate the Veteran’s appeal with this critical point unaddressed; however, VA’s efforts to do so have been frustrated by the Veteran’s inactions. In light of above, the Board concludes that another remand is necessary in order to provide the Veteran the opportunity to inform VA of his complete occupational history, to include the names, addresses, and contact information of his former employers and the dates of employment since November 20, 2008. This will allow VA to conduct development necessary to substantiate whether or not such was a “sheltered environment,” to include contacting the Veteran’s former employers via a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. To the above point, the Veteran is encouraged to fully cooperate with VA’s requests in an effort to substantiate his appeal, as VA’s duty to assist him in doing so is not a one-way street. Wood v. Derwinski, 1Vet. App.190 (1991). The matters are REMANDED for the following action: 1. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim/appeal for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *In connection with the above, the Veteran is encouraged to provide VA with names, addresses, and contact information of his former employers and the dates of employment since November 20, 2008. 2. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran’s assistance regarding the latter. 3. The AOJ must contact any of the Veteran’s employers listed on the submitted VA Form 8940 since November 2008 and request that they complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The employer(s) must also be requested to outline an accomodation(s) that the Veteran was provided in connection with the functional impairment associated with his service-connected PTSD. (Continued on the next page)   4. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the Veteran’s claim for TDIU, to specifically include collecting and verifying information concerning his complete educational and occupational history, and scheduling him for additional VA examination(s) necessary for adjudicating the issue. 5. Thereafter, the AOJ must adjudicate the TDIU issue in light of any additional evidence added to the record. If the benefit remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.