Citation Nr: 21029014 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 12-22 820 DATE: May 12, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2002 to June 2006. The Board notes that the Veteran's appeal originally included claims for entitlement to service connection for a left eye disability, entitlement to service connection for a cervical spine disability, and an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to October 24, 2012, and in excess of 70 percent disabling thereafter. A Supplemental Statement of the Case (SSOC) was issued in December 2020 for these issues and the TDIU claim. In a January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ), identified the December 2020 SSOC as the decision on appeal, and listed his left eye disability, cervical spine disability, and PTSD claims as those he wished to appeal from the SSOC. Accordingly, these claims will be decided under the Appeals Modernization Act after the Veteran has been afforded a hearing before a VLJ. The Veteran's January 2021 VA Form 10182, Decision Review Request: Board Hearing did not list his claim for entitlement to TDIU, thus the TDIU claim remains on appeal in the Legacy system. 1. Entitlement to TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). At present, the Veteran's combined service-connected disabilities have a combined disability rating of 90 percent. The Veteran has had a single service-connected disability rating 60 percent or higher since January 2010. Accordingly, the Veteran does meet the schedular requirement for entitlement to TDIU. However, the probative evidence of record does not establish if the Veteran currently has a gainful occupation. The Veteran has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, establishing his current employment status and income. Further, an October 2020 Review Post-Traumatic Stress Disorder (PTSD) disability benefits questionnaire (DBQ) notes that the Veteran recently became employed as an assistant manager at a car wash. Prior to that, the Veteran was employed for two years at Target. Without a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Board cannot determine if this employment was "substantially gainful", and if employment continues today. A completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, is necessary to comprehensively evaluate the Veteran's claim for entitlement to TDIU. Accordingly, the matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment and financial information. 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.