Citation Nr: 21030258
Decision Date: 05/18/21	Archive Date: 05/18/21

DOCKET NO. 18-46 042A
DATE: May 18, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 

REASONS FOR REMAND

The Veteran served on active duty from May 1970 to February 1972.  His awards and decorations include the Purple Heart. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

In April 2020, the Board found, in pertinent part, that TDIU was not raised by the record. The Veteran appealed the April 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). 

Counsel for the appellant and the Secretary of VA (the parties) filed a Joint Motion for Partial Remand (JMPR).  An Order of the Court dated in December 2020 granted the motion and remanded the case to the Board.  The parties agreed that the Board erred when it failed to adequately address whether the evidence of record was sufficient to raise the issue of TDIU. 

Upon review, the Board finds that the issue of TDIU was sufficiently raised by the evidence of record in connection with the then pending claim on appeal for service-connected lumbar spine disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  in the June 2016 notice of disagreement with the September 2015 rating decision on appeal, the Veteran listed the issue of TDIU.  An October 2018 VA examination report (VAX) for back conditions noted that the Veteran had not worked since 2009.  An April 2019 VAX for PTSD also noted the Veteran's wife reported he quit working due to the severity of his back pain.  A May 2012 SSA/SSI letter noted that the Veteran was found to be disabled as of December 31, 2009.  Additionally, October 2018 and October 2019 VAXs for back conditions show the examiners explained how the Veteran's spine condition impacted his ability to work.

The critical question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected lumbar spine disability. Additional development is needed, such as asking the Veteran for updated information about his employment and income since he last submitted VA Form 21-8940 in March 2011.

Additionally, SSA records are missing from the Veteran's claim file and the last SSA inquiry for records was conducted years before his SSA disability claim was granted. Thus, a remand is necessary to obtain any outstanding SSA records. 

The matter is REMANDED for the following actions:

1. Obtain any outstanding SSA records. Any negative responses should be documented in the Veteran's claim file. 

2. Provide the Veteran and his representative with notice concerning how to substantiate the claim for a TDIU since July 24, 2015.  Ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information.

3. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU.  All actions to obtain any requested records should be fully documented in the electronic claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing.

4. Then, adjudicate the claim for TDIU.  If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

 

 

T. Blake Carter

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Smith, 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.