Citation Nr: 22019640
Decision Date: 04/02/22	Archive Date: 04/02/22

DOCKET NO. 16-03 131
DATE: April 2, 2022

REMANDED

The appeal for a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 2008 to October 2011.

This matter is on appeal from an August 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2021, the Board took jurisdiction of the issue of TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), and remanded the claim for further development.

Specifically, the Board asked the RO to provide notice to the Veteran about the issue, inform him about the information and evidence necessary, and ask the Veteran to complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability.

In December 2021, the RO sent the Veteran a subsequent development letter informing the Veteran about the TDIU claim and requested that the Veteran complete, sign, and return the enclosed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability and if possible, VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, by each employer on the VA Form 21-8940. 

VA never received the forms, and the RO adjudicated the TDIU claim on the sole basis that the Veteran did not send in the forms, which is not a legal basis for denying the claim. The Board finds that an additional opportunity should be provided to the Veteran to submit the correct forms and have the RO adjudicate the claims on the merits.

The matters are REMANDED for the following action:

1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. The Veteran should be informed as to the information and evidence necessary to substantiate the claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should be asked to complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability.

 

 

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Williams, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.