Citation Nr: 21028364
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 08-05 324
DATE: May 11, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 18, 2021, is remanded.

REASONS FOR REMAND

The Veteran's claim was previously remanded to the Board of Veterans' Appeals (Board) from a February 2020 order of the United States Court of Appeals for Veterans Claims (Court) for action in compliance with a Joint Motion for Partial Remand (JMPR).  Following the Court's remand, the Board remanded this case in September 2020.  In the interim, a February 2021 rating decision granted a 100 percent schedular rating for the Veteran's service-connected major depressive disorder effective January 18, 2021.  A finding of incompetency was proposed.  In February 2021 correspondence, the Department of Veterans Affairs (VA) Regional Office (RO) notified the Veteran that it was in receipt of information that the Veteran needed the help of another person or institution, i.e., a fiduciary, to manage his VA benefits.  

The RO then attempted to contact the Veteran multiple times with regard to this matter.  Correspondence was received in March 2021 which authorized VA to disclose the Veteran's information to his spouse.  Additional correspondence appeared to indicate that the Veteran also wanted his spouse designated as his fiduciary/payee.  An April 2021 rating decision determined that the Veteran was not competent to handle disbursement of VA funds.  Unfortunately, information in the record indicates that the Veteran's spouse has died.  See April 2121 RO correspondence.  The RO has not designated a fiduciary/payee for the Veteran.  It is unclear if he has another family member, friend, or other person to assist him with his claim and benefits.  The Board finds that since the Veteran has been determined to be incompetent for VA purposes, these matters should be resolved as such matters are inextricably intertwined with the matter on appeal and to ensure the Veteran is afforded due process prior to Board adjudication of the Veteran's appeal.

The matters are REMANDED for the following action:

1. The Veteran should complete its action on the appointment of a fiduciary/payee.  The RO should also determine if the Veteran is otherwise being assisted with his claim including through his accredited representative as VA has deemed him incompetent. 

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2. Then, ensure any actions outlined in the Board's September 2020 remand as to the issue of entitlement to a TDIU prior to January 18, 2021, that were not accomplished prior to the February 2021 supplemental statement of the case are completed such as completion of a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Connolly, 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.