Citation Nr: 21027438 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 09-36 093 DATE: May 5, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Peacetime and Vietnam Era, from January 1963 to November 1965, and January 1966 to December 1968. Also, the Veteran served on active duty from December 1968 to August 1971 and discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing conducted in February 2011. A transcript of the hearing is of record. When this matter came before the Board most recently in January 2021, it was remanded for additional development. The additional development has been completed, and the matter returns to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds remand is again required to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS FOR REMAND Entitlement to a TDIU is remanded. Pursuant to the Board's January 2021 remand directives, attempts to obtain a VA Form 21-8940 dated November 2008 and VA Form 21-4192 dated December 2008 previously submitted by the Veteran were to be undertaken. The Board observes a Report of General Information dated January 2021 indicates that, "[t]hese documents have not been located." On the same date in January 2021, VA issued a subsequent development letter to the Veteran stating that, "we are also attempting to locate the November 21, 2008, VA Form 21-8940 and December 17, 2008, VA form 21-4192 and associate them with your claim file." The Board does not observe any conclusion reached by VA that, "it is reasonably certain [the records] do not exist or further efforts to obtain them would be futile." Moreover, the Board does not observe notification being provided to the Veteran or his representative of any such conclusion, as required by 38 C.F.R. § 3.159(e)(1) and expressly directed in the Board's prior remand. Further, the Board's prior remand directed that SSA records pertaining to the Veteran's employment and earnings history be obtained. An unsigned VA memorandum dated January 2021 indicates that, "SSA's duty is to provide Medical records and determinations to VA." However, 38 U.S.C. § 5106 provides that, "[t]he head of any Federal department or agency shall provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto." Similarly, the Board does not observe notification being provided to the Veteran or his representative of any conclusion reached that the SSA employment and earnings records "do not exist or further efforts to obtain them would be futile." 38 C.F.R. § 3.159(e)(1). Because this appeal hinges on the Veteran's work history, remand is again required to obtain a detailed and accurate record of the Veteran's history of employment and earnings. Finally, the Board observes the Veteran has been provided VA Form 21-8940 (as well as, VA Form 21-4192) on numerous occasions to complete and return. To date, the Veteran has not completed and returned VA Form 21-8940. Once again, the Board reminds the Veteran and his representative that, "[t]he duty to assist is not always a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). According to Wood, "[i]f a 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 putative evidence." Id. Accordingly, this matter is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting the Veteran provide sufficient information and, if necessary, authorization to obtain any additional, outstanding evidence pertinent to the claim for a TDIU not currently of record. Provide the Veteran and his representative another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, to complete and return. The letter should specifically ask the Veteran to provide the following: (a.) Proof of income for each year from 2007 forward, including any state and federal income tax forms, W-2 forms, and 1099 forms. (b.) A completed VA Form 21-8940, which includes detailed information for all periods of employment from 2007 forward. (c.) If necessary, authorization for VA to obtain information concerning the Veteran's earnings for each year from 2007 forward from the SSA and Internal Revenue Service (IRS). **The Veteran (and his representative) is encouraged to cooperate with VA by promptly completing and returning VA Forms 21-8940 and 21-4192 and all other forms provided to him. As stated above, "[t]he duty to assist is not always a one-way street." See Wood, 1 Vet. App. at 193. 2. Contact the SSA and IRS, after receiving any necessary authorization from the Veteran, and request the agencies provide information concerning the Veteran's earnings for each year from 2007 forward. A copy of any request(s) sent to the SSA and IRS, and any reply thereto, to include any records obtained from these agencies, must be included in the claims file. VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain them would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and if the records do not exist or why further attempts would be futile pursuant to 38 C.F.R. § 3.159(e). 3. Obtain the Veteran's November 21, 2008, VA Form 21-8940 and December 17, 2008, VA Form 21-4192 and associate them with the claims file. If the records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain them would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and if the records do not exist or why further attempts would be futile pursuant to 38 C.F.R. § 3.159(e). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.