Citation Nr: 21026942 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 09-09 555 DATE: May 4, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the West Virginia Army National Guard, which included a period of initial active duty for training from October 1981 to March 1982. She also had service in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This appeal originally included claims for increased evaluations for the left knee, left ankle, and psychiatric disabilities, in addition to the above claim. The increased evaluation claims have been addressed and are no longer in appellate status. See, June 2012, August 2014, July 2015, and November 2017 Board decisions and May 2017 and March 2019 rating decisions. In its August 2014 decision, the Board denied the TDIU claim which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2015, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by the parties and remanded the TDIU claim to the Board, citing that the Board's decision "[f]ailed to sufficiently address Appellant's "employment history, educational and vocational attainment, and all other factors having a bearing on the issue" pursuant to 38 C.F.R. § 4.16(b). In its July 2015 Remand, the Board deemed the Veteran's TDIU intertwined with her other increased claims on appeal, and in November 2017 and February 2020, respectively remanded for further development, including outstanding treatment record for her underlying claims and obtaining information regarding the Veteran's employment history from August 2007 to the present, and her wages and earnings, leave taken, and hours worked, in order to determine whether any period of employment is indicative of marginal employment. This matter was most recently remanded in January 2021 for outstanding employment information from 2007 to the present, and in addition, any SSA earnings statements showing the Veteran's income history. The matter has now been returned to the Board for appellate review. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Unfortunately, the Board finds that it must remand this matter once again because the Veteran and her representative's inaction is frustrating the Board's effort to adjudicate this matter in furtherance of the Joint Motion. To date, the Veteran and her representative have not directly responded to the January 29, 2021, Subsequent Development Letter (following the Board's most recent January 2021remand), including attached VA forms 21-8940 and 21-4142. The Veteran was notified that she needed to provide information with regard to her employment history in order for her TDIU claim to be adjudicated on its merits, which to date, she has still not provided. Although the Veteran's representative submitted an Appellant Brief in April 2021 restating the Veteran's arguments for her TDIU claim, he did not address the outstanding employment/unemployment history. Based on the Veteran's reports contained in her medical treatment records reflecting that she has been employed on and off since filing her claim on August 14, 2007, the Veteran's TDIU claim was denied on this basis by the RO in its July 2017 Supplemental Statement of a Case (SSOC). Since then, the Veteran has not acknowledged whether she is currently unemployed or if so, for what specific periods of time, and whether her employment status during the pendency of her appeal is marginal in any aspect. In light of above, and in view of the continuing pandemic, the Board concludes that another remand is necessary in order to provide the Veteran with a final opportunity to inform VA of her current complete occupational history, to include the names, addresses, and contact information of the Veteran's former employers and the dates of employment since August 2007. This will allow VA to conduct development necessary to determine whether such employment was marginal in nature, to include contacting the Veteran's current or former employers via a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Given these facts, the Veteran must fully cooperate with VA's requests in its effort to substantiate her appeal, as VA's duty to assist her in doing so is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. The Agency of Jurisdiction (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 her former employers and the dates of employment since August 14, 2007. The Veteran is hereby informed that she has a duty to cooperate in the development of her claim, and failure to do so without good cause may result in the denial of her claim. Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 C.F.R. § 3.655. The Veteran is hereby advised that an accurate picture of her earnings and employment history is necessary to adjudicate this claim, and if she does not ensure VA has this information, then her claim will be considered based on incomplete evidence. It is ultimately her responsibility to submit the evidence needed to support her claim. Her VA treatment records indicate she has been working since the early 2000's as a security guard. The Veteran needs to confirm her periods of employment, and if this employment only provides marginal income, she must submit information showing such. 2. The AOJ must contact any of the Veteran's employers from August 2007 listed on the submitted VA Form 8940 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 any accomodation(s) that the Veteran was provided in connection with the functional impairment associated with her service-connected left knee, left ankle, right knee and acquired psychiatric disability. 3. Following this development, and any other development needed to ensure substantial compliance with this Remand, the AOJ must then adjudicate the Veteran's TDIU claim. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, Associate Counsel 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.