Citation Nr: 21040745 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-31 533 DATE: July 6, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a neck disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 2006 to July 2006 and from January 2010 to November 2010. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the Veteran has other claims pending before the Board. However, as the Veteran is currently waiting to be scheduled for a hearing as to the issues of increased rating for a left knee disability, increased rating for a left shoulder disability, service connection for a foot disability, service connection for a right shoulder disability, service connection for a bilateral ankle disability, and service connection for a traumatic brain injury, these issues will not be discussed in this decision, but will instead be discussed at a later date in a separate decision. The record reflects that the Veteran received a letter in October 2020 indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, he does not have a pending hearing request as to the issue of entitlement to a rating in excess of 10 percent for a neck disability. He provided testimony on this issue in a hearing with the undersigned Veterans Law Judge on February 2020. The undersigned Veterans Law Judge has considered the transcript of that hearing as evidence in making a decision. 1. Entitlement to a rating in excess of 10 percent for a neck disability is remanded. Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim regarding an increased rating for a neck disability. The Veteran's most recent examination for this condition was in November 2017. At his hearing before the undersigned Veterans Law Judge in February 2020, the Veteran testified that his condition has worsened since his last examination. The Board finds a contemporaneous examination is required in order to determine the current severity of his disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran testified at the February 2020 Board hearing that his service-connected disabilities, including his neck, render him unemployable. As a result, the Board finds that the record has raised a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that this issue is not ready for appellate review because it is inextricably intertwined with the above remanded rating claim (see Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)) as well as because from the existing record the Board is not able to ascertain when, if ever, his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment given his prior vocational history, work experience, and education. See 38 U.S.C. § 5103A (b). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After completing the above development, the Veteran should be afforded a VA examination by an appropriate provider for his neck disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.