Citation Nr: 21030375
Decision Date: 05/18/21	Archive Date: 05/18/21

DOCKET NO. 12-01 036
DATE: May 18, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran had active service from July 2001 to November 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)) pertaining to entitlement to an increased rating for a right knee disability.  In a January 2021 decision, the Board added the issue of entitlement to TDIU to the appeal pursuant to Rice v. Shinseki, App. 447 (2009), and then remanded the issue for further development.  The issue has now returned to the Board for adjudication.

In the January 2021 Board remand, the AOJ was directed to obtain the Veteran's VA Vocational Rehabilitation and Employment File.  February 2021 email correspondence shows that the file had been processed to be scanned, however, there were no vocational rehabilitation records added to file after the January 2021 Board decision.  While the record contains some vocational rehabilitation records, these records appear to have been added prior to the January 2021 Board remand and it is unclear whether there are additional records that were not obtained and associated with the file.  Moreover, the March 2021 supplemental statement of the case (SSOC) and rating decision addressing TDIU do not list any vocational rehabilitation records as evidence having been reviewed.  As there has not been substantial compliance with the Board's previous remand directives, an additional remand is required to obtain the Veteran's vocational rehabilitation records.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board also notes that in the January 2021 Board remand, the AOJ was directed to provide the Veteran with a VA Form 21-8940, Application for Increased Compensation Based on Unemployability to complete.  While the AOJ did provide the Veteran with the application, he did not submit it.  Given that the information obtained from the application is highly relevant to adjudicating the claim for TDIU, on remand, the Veteran should be provided another opportunity to submit the application. 

The matter is REMANDED for the following action:

1. Request that the Veteran complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability to clarify his employment status, and to specifically clarify his employment since 2017.

2. Ensure the Veteran's entire vocational rehabilitation and employment folder, including any paper folder, has been scanned and associated with the electronic claims file.  All attempts to obtain the vocational rehabilitation employment folder should be clearly documented and associated with the claims file, to include any evidence of unavailability of all, or a portion of, the vocational rehabilitation employment folder.  If the full vocational rehabilitation employment folder is unable to be obtained, the Agency of Original Jurisdiction (AOJ) should contact the Veteran to determine if any of the evidence contained therein is in his possession.

3. The AOJ should conduct any other development that may be indicated as a consequence of the actions taken in the preceding paragraphs.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Saikh, 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.