Citation Nr: 22044599
Decision Date: 08/05/22	Archive Date: 08/05/22

DOCKET NO. 16-28 513
DATE: August 5, 2022

REMANDED

Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active duty service with the U.S. Army from August 2001 to February 2002 and from July 2002 to February 2004.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).

In May 2021, the Board remanded this issue to conduct additional development. The Board directed the AOJ to obtain a current VA Form 21-8940 for the claim of entitlement to a TDIU. 

In December 2021, the Board remanded this issue to conduct further development. The Board directed the AOJ to refer the Veteran's claim to the Director of Compensation Service for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b).  In April 2022, the AOJ did obtained an advisory opinion for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). 

However, the AOJ has not obtained a current VA Form 21-8940 for the claim of entitlement to a TDIU, as directed in the May 2021 remand. Since the May 2021 remand, the AOJ has not sent the Veteran a letter with an enclosed VA Form 21-8940. As such, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c), (d). 

The Board reminds the Veteran that a claimant, in pursuing a claim, has some responsibility to cooperate in the development of all facts pertinent to her claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Board. App. 190 (1991).

The matters are REMANDED for the following action:

1. Conduct any additional development determined to be warranted, to include obtaining a current VA Form 21-8940 for the claim of entitlement to a TDIU. 

2. Thereafter, readjudicate the remanded issues.

 

 

Megan R. Thomas

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Baxter, 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.