Citation Nr: 21041951 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-03 805 DATE: July 10, 2021 REMANDED Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from April 1969 to March 1971, June 1971 to November 1975, and August 1979 to July 1989. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In November 2020, the Board, among other actions, remanded the issues of entitlement to a TDIU and entitlement to service connection for a gastrointestinal disorder, to include Crohn's disease and irritable bowel syndrome-diarrhea. In an April 2021 rating decision, the RO granted the service connection claim. As such, the award of service connection for irritable bowel syndrome constitutes a full award of the benefits sought on appeal as to that issue, it is no longer before the Board, and it will not be further considered or addressed in this decision. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Preliminary matter As will be discussed further below, the Veteran's appealed issue does not stem from a formal claim seeking a TDIU; rather, as unemployability due to service-connected disabilities was raised by the record in connection with several appealed issues seeking increased evaluations, the Board determined a in the November 2020 decision and remand that a TDIU appeal is part and parcel of the increased evaluation appeals. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). While the Board observes that the AOJ adjudicated the Veteran's TDIU appeal in a rating decision and Supplemental Statement of the Case (SSOC) that were concurrently issued in April 2021, the matter of entitlement to TDIU is considered to have been initially adjudicated as part and parcel of the Veteran's appeals seeking increased evaluation, which have been readjudicated by the Board in November 2020. As such, the appeal period for consideration regarding the Veteran's TDIU appeal is attached to the appeal period for those appeals seeking increased evaluations. 1. Entitlement to a TDIU is remanded. The Board's November 2020 remand directed that the AOJ provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) for him to complete and submit in support of this appeal, as per Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In response, the AOJ provided the Veteran and his private attorney with this form in March 2021; however, neither party has replied to this request for critical information. As noted above, the AOJ denied the Veteran's TDIU in the April 2021 rating decision and SSOC, stating that submission of a completed VA Form 21-8940 is "required" for the award of the benefits sought. Initially, the Board observes that the law does not require submission of a completed VA Form 21-8940 for a TDIU to be warranted and/or awarded. To this point, the Board is concerned that the Veteran has not received due process regarding the readjudication of his appeal, as neither the April 2021 rating decision nor SSOC considered the merits of the Veteran's TDIU appeal. Notwithstanding the above, the non-action of the Veteran and his private attorney regarding the completion and submission of the provided VA Form 21-8940 is noted. Possibly, the Veteran and his private attorney did not have ample to provide the requested information, as the Board observes that readjudication of the Veteran's TDIU appeal occurred only 32 days after the AOJ sent the VA Form 21-8940 to them. While completion and submission of this form are not "required" under the controlling laws, as stated by the AOJ, the Veteran's responses on this form are critical in determining whether a TDIU is warranted. This is especially true in the present case, as the record for review reflects that the Veteran has been less than consistent regarding his work history. Specifically, the Veteran reported to a VA examiner in November 2017 that he retired from his last employment, a "desk job" in 1996;" however, he told another VA examiner in January 2021 that he last worked in 2000. The file further reflects that he has been in receipt of disability benefits from the Social Security Administration since April 2006, with a "start date" of March 2009. In view of above, the Board concludes that the Veteran's TDIU appeal must, again, be remanded to ensure due process of law and for evidence reconciling inconsistencies in facts critical to the matter at issue. The Veteran is encouraged to work with his private attorney and cooperate with the AOJ's efforts to develop his TDIU so that it may be readjudicated on the merits, as required by the controlling VA laws. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran and his private attorney with adequate notice of the criteria necessary to establish a claim for TDIU under 38 C.F.R. § 4.16(a) and (b). 2. The AOJ must provide the Veteran and his private attorney the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *The Veteran is encouraged to work with his private attorney and cooperate with the AOJ's attempts to gather information and evidence critical in the readjudication of his appealed issue. 3. The AOJ must obtain and associate with the claims file any decision concerning disability benefits from the Social Security Administration (SSA), to include the medical records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 4. Thereafter, the AOJ must undertake any development necessary in order to develop and readjudicate the Veteran's TDIU appeal under the controlling VA laws. This may include, but is not limited to, collecting and verifying information concerning his complete educational and occupational history, scheduling him for additional VA examination(s) necessary for adjudicating the issue, and referring the matter to the Undersecretary for Benefits or the Director of Compensation Service for actions necessary under 38 C.F.R. § 4.16 (b) for the period prior to April 12, 2017. 5. Thereafter, the AOJ must readjudicate the Veteran's appealed issue under the controlling VA laws in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his private attorney with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.