Citation Nr: 22017494 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-05 657 DATE: March 25, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1991 to September 2003 and from October 2008 to July 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA). In January 2018, the Veteran testified before a Veterans Law Judge (VLJ) who has since retired from the Board. A transcript of the hearing is associated with the claims file. An April 2021 letter notified the Veteran that the VLJ who conducted his hearing is no longer at the Board, and he was asked to respond within 30 days indicating whether he would like a new hearing. In April 27, 2021 correspondence, the Veteran informed the Board that he did not wish to appear at another Board hearing; the Veteran requested that his case be considered based on the evidence of record. In June 2018, the Board remanded the issues on appeal for further development. In July 2021, the case returned to the Board. The Board denied entitlement to an increased rating for the Veteran's depressive disorder and migraines. In addition, the Board granted increased ratings for the Veteran's left wrist, cervical spine, and right knee. Lastly, the Board found that the issue of TDIU had been raised by the record. 1. Entitlement to a TDIU is remanded. At the July 2018 VA psychiatric examination, the Veteran asserted that he was unemployed due to his service-connected disabilities. While the records reflects that he has since participated in a substantially gainful occupation, the matter of entitlement to a TDIU is properly before the Board. Consequent to the Board prior remand, the Veteran was provided with a VA Form 21-8940 and instruction to submit an accurately completed copy in furtherance of his appealed issue. The Veteran did not respond, and the AOJ denied the Veteran's appeal for this reason. Neither the Veteran nor his accredited representative have provided an explanation for the Veteran's inaction in this regard. The Veteran's appealed issue has been returned to the Board for further appellate consideration. First, there is no controlling law providing that a VA Form 21-8940 must be completed by the Veteran and received by VA for a claim or appeal seeking a TDIU to be granted. To this extent, the Board cannot reach the merits of the Veteran's appeal in the first instance. Nonetheless, the United States Court of Appeals for Veterans' Claims (Court) has held that an appellant's failure to provide a completed copy of this form or the equivalent information may constitute abandonment of the TDIU appeal. 38 C.F.R. § 3.158; Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). In view of the above, the Board concludes that another remand is necessary to afford the Veteran an opportunity to provide VA with accurate information concerning his employment status and environment throughout the appeal period. He is encouraged to cooperate with the AOJ's efforts and engage his accredited representative in furtherance of completing the Board's remand directives. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran 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. *In completion of the VA Form 21-8940, the Veteran is asked to provide a statement to VA which outlines his work environment and any circumstances that may render such akin to a sheltered work environment, to include any concessions or special allowances by his supervisor(s) to account for the functional impairment stemming from his service-connected disabilities. *The Veteran is encouraged to work with his representative and cooperate with the AOJ by providing the requested information and/or evidence within a reasonable time. He should also seek counsel from his accredited representative regarding this form and how such may be completed. 2. The AOJ must obtain updated treatment records from all VA and private providers, with the Veteran's assistance regarding the latter. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. 3. Thereafter, the AOJ must undertake any additional development deemed appropriate, to include referring the Veteran's appeal seeking a TDIU, to include undertaking any actions necessary to verify the Veteran's complete occupational and occupational history, yearly earnings, and the circumstances of his employment in furtherance of determining whether such may qualify as a sheltered work environment under Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of the record. If any benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with a copy of the readjudication and be afforded the applicable opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.