Citation Nr: 21042041 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-54 176 DATE: July 11, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to January 31, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1969 to August 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for posttraumatic stress disorder (PTSD), effective December 16, 2010. Rice v. Shinseki, 22 Vet. App. 447 (2009). By way of background, in September 2019, the Board issued a decision which, in pertinent part, denied entitlement to a TDIU prior to January 31, 2017. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted the parties' (the Veteran and Secretary of VA) Joint Motion for Partial Remand (JMPR), which vacated and remanded the September 2019 Board decision insofar as it denied entitlement to a TDIU prior to January 31, 2017. In February 2021, the Board last remanded this matter to the RO for further development. Entitlement to a TDIU due to service-connected disabilities prior to January 31, 2017 Although the Board regrets the additional delay, a remand is necessary to properly adjudicate the Veteran's claim and to ensure that he is afforded every possible consideration. The Veteran contends that he is entitled to a TDIU for the period prior to January 31, 2017. In his September 2017 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked as a cook in January 2017. However, he did not provide his prior employment history while the name of his last employer is illegible on the form. Moreover, based upon review of the available evidence of record, it is unclear whether the Veteran was employed for the entire appeal period prior to January 31, 2017, or whether any such employment was marginal in nature, to include whether he worked in a protected work environment. As such, in February 2021, the Board remanded the Veteran's claim to the RO to request that the Veteran provide his employment history for the appeal period and to clarify his employment status. Although the RO requested that the Veteran complete and return a new VA Form 21-8940 and to clarify his employment history, to date, the Veteran has not yet provided such information. See March 2021 VA development letter. The Veteran, however, through his representative and approximate to the certification of his appeal to the Board, indicated that he is in the process of completing the required form. See March 2021 Third Party Correspondence. Given that the critical questions before the Board are whether the Veteran was employed for the entire appeal period prior to January 31, 2017, and whether such employment was marginal, and in light of the inconsistent evidence of record concerning the Veteran's employment, the Board finds that adjudication of this issue would be premature at this point without providing the Veteran another opportunity to clarify the nature of his employment for the appeal period prior to January 31, 2017. Moreover, as the evidence of record reflects that the Veteran's employment for this period of time may have been marginal or that he may have worked in a protected environment with his family, the Board finds that VA's duty to assist includes requesting that the Veteran provide information concerning his annual income for each year he claims to have been precluded from obtaining or maintaining substantially gainful employment from December 16, 2010, to January 31, 2017. The Board notes that information such as tax returns during these years as well as statements from himself, as the evidence shows he may have been self-employed for the relevant period, or his employees/family members that worked for and with him may be beneficial in supporting his claim. Additionally, to the extent that the Veteran contends that his employment has been marginal, to include as a result of existing in a protected work environment, he should provide an explanation as to the specific conditions of his employment that made it so. Further, upon review of the record, it is unclear if the claims file includes all pertinent medical records. In this regard, the Veteran reported treatment and attendance at One Stop Veterans meetings with Dr. F.G. since 2010. See November 2017 Report of General Information. While the evidence of record includes three letters from Dr. F.G. regarding the Veteran's psychiatric condition, the record does not otherwise contain any treatment records from this treatment, which spans over a decade. Any such treatment records may be pertinent to the Veteran's claim as Dr. F.G. indicated that the Veteran had tried working full time but had been unsuccessful. See April 2015 correspondence. As such, on remand, the AOJ should also attempt to obtain any outstanding medical records from One Stop Veterans and/or Dr. F.G. Finally, the Veteran is advised that the duty to assist is not always a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran does not complete a VA Form 21-8940, VA may lack the information necessary to favorably adjudicate his TDIU claim. The matters are REMANDED for the following action: 1. Again, contact the Veteran and his representative and provide and request that he complete and submit a VA Form 21-8940, (Veteran's Application for Increased Compensation Based on Unemployability) or a comparable statement as to the information requested on this Form. 2. Request that the Veteran submit a statement or report clarifying and providing detailed information regarding his employment and income history for each year in which he claims to have been precluded from maintaining gainful employment due to his service-connected disabilities from December 2010 to January 2017, to include how many hours per week he worked. Also, invite the Veteran to submit additional supporting documentation or statements from former employees/family members that worked for or with him. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 3. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities from December 2010 to January 2017 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 4. Provide the Veteran another opportunity to identify and/or submit any relevant outstanding private treatment records pertaining to his claim. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained and associated with the claims file. Specifically, attempt to obtain any outstanding records from the Veteran's treatment with One Stop Veterans and/or Dr. F.G. The Veteran indicated treatment with One Stop Veterans and/or Dr. F.G. since 2010. If the RO determines that any identified records do not exist or that further efforts would be futile, such should be documented in the claims file. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.