Citation Nr: 21029380 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 09-23 210 DATE: May 13, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 30, 2015, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1984 to April 1988 and from March 1995 to May 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision that, in pertinent part, continued 10 percent ratings, each, for low back and left knee disabilities. In April 2014, the case was remanded to reschedule the Veteran for a hearing before the Board. In May 2015, a videoconference hearing was held before the undersigned; a transcript is associated with the record. An interim (August 2015) rating decision, in pertinent part, increased the rating for the low back disability to 20 percent, effective March 27, 2015, and denied a TDIU rating. In September 2015 and May 2017, the Board remanded the claims for additional development. Another interim (March 2018) rating decision increased the rating for the left knee to 30 percent and the low back to 40 percent, effective March 27, 2015, each. In August 2018, the Board issued a decision which, in relevant part: granted a 20 percent rating for the low back disability from July 16, 2014 to March 27, 2015; denied ratings for the low back disability in excess of 10 percent prior to July 16, 2014, in excess of 20 percent from July 16, 2014 to March 27, 2015, and in excess of 40 percent from March 27, 2015; and, remanded the matter of entitlement to increases in the staged (10 percent prior to March 27, 2015, and 30 percent from that date) ratings for a left knee disability. [The Board found that the matter of entitlement to a TDIU rating had not been re-raised since a prior (August 2015) final rating decision in the context of the instant claims for increase.] The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an April 2019 Joint Motion for Partial Remand (JMPR) by the parties. Regarding the TDIU claim, the parties agreed that the Board erred when it declined to adjudicate the issue, finding that a Notice of Disagreement (NOD) to the August 2015 rating was not required considering the pending NODs in the instant claims for increase (in essence rendering the decision incapable of finality). An April 2019 CAVC Order remanded the matters for compliance with JMPR instructions. In November 2019, the Board denied a rating in excess of 10 percent for bilateral plantar fasciitis prior to March 27, 2015, and remanded the other matters (low back, left knee, and TDIU) for additional development. An interim (August 2020) rating decision granted a TDIU rating effective June 30, 2015. Accordingly, the matter is characterized (as listed above) as entitlement to a TDIU rating prior to that date. Harper v. Wilkie, 30 Vet. App. 356 (2018). A January 2021 Board decision denied entitlement to increases in the "staged" rating assigned for the Veteran's low back disability, granted increases in the "staged" ratings assigned for the Veteran's left knee disability, and remanded the matter of entitlement to a TDIU prior to June 30, 2015 for additional development (as discussed further below). [Accordingly, the matters of the ratings for bilateral plantar fasciitis, low back, and left knee disabilities are no longer on appeal.] Entitlement to a TDIU rating prior to June 30, 2015 In January 2021, the Board remanded this matter for further development of the pertinent evidence necessary to adjudicate the claim. The record contains conflicting reports regarding the Veteran's (unclear) educational history and thereby, to an extent, her ability to maintain substantially gainful employment consistent with her work experience and education. On June 30, 2015, she submitted a VA Form 21-8940, and reported that she has three years of college education, and that she began community college courses in 2002; she wrote "N/A" for the completion date. A December 2007 VA examination report notes she was attending one college class per semester. An August 2010 VA treatment record notes, "For the past 2 years, she attempted to go back to school using her SSDI and VA disability." A January 2011 VA treatment record notes that she was attending community college, majoring in photography. She subsequently (in June 2017) submitted a copy of her community college student identification card, suggesting that she was then attending college. Furthermore, SSA discontinued her SSA disability benefits effective December 2013, based upon a finding of improvement in her (nonservice-connected) TBI/cognitive functioning. The SSA judge found the Veteran "has made wildly inconsistent statements regarding matters relevant to the issue of disability" and that she "no longer has an impairment or combination of impairments that significantly limits her ability to perform basic work activities." See September 25, 2015 SSA Decision.] Accordingly, the Board remanded this matter to obtain a complete, correct, and updated education history from the Veteran (and for any further follow-up development indicated). In February 5, 2021 correspondence (pursuant to the January 2021 remand), the Agency of Original Jurisdiction (AOJ) asked the Veteran to provide complete and accurate VA Forms 21-8940 and 21-4192. The correspondence states that if VA does not hear from the Veteran, "we may make a decision on [her] claim after 30 days." To date, she has not submitted the forms requested; her noncompliance frustrates VA's ability to properly adjudicate the claim. In an April 2021 brief, the Veteran's representative wrote, "The [Veteran] may have legitimate mitigating circumstances for not submitting a complete and signed VA Form 21-8940. Therefore, she should be given another chance to complete the form." Considering the representative's request, and in accordance with the paternalistic nature of the VA adjudication system, the Board finds that the Veteran should be provided an additional opportunity to provide the requested VA Forms. She is advised, however, that a governing regulation, 38 C.F.R. § 3.158(a), provides that where evidence requested in connection with a claim for VA benefits is not received within a year following the request (here, by February 5, 2022), the claim will [emphasis added] be considered abandoned. She may waive the remainder of the period afforded for response by indicating in writing that she will not provide the information sought. Expeditious handling of her claim is dependent on the promptness of her response. The matter is REMANDED for the following: 1. Notify the Veteran that, pursuant to 38 C.F.R. § 3.158(a), she has the remainder of the one-year period from the February 5, 2021 correspondence (until February 5, 2022) to submit the requested VA Forms 21-8940 and 21-4192. [She should again be provided VA Forms 21-8940 and 21-4192.] If (after one-year following the initial February 5, 2021 request) she has not submitted such forms, completed, the claim seeking a TDIU rating prior to June 30, 2015 must be further processed as abandoned under 38 C.F.R. § 3.158(a). 2. If, and only if, the Veteran submits the requested VA Forms (prior to February 5, 2022) completed, review the record, and arrange for any further development indicated (e.g., to reconcile any remaining inconsistencies in the information provided by contacting employers and colleges identified, if necessary, and for development regarding the impact of the Veteran's service-connected disabilities on her employability prior to June 30, 2015). 3. Then readjudicate the claim for entitlement to a TDIU rating prior to June 30, 2015, considering all additional evidence and information received. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.