Citation Nr: 23020172
Decision Date: 03/31/23	Archive Date: 03/31/23

DOCKET NO. 16-62 040
DATE: March 31, 2023

REMANDED

Entitlement to an initial rating in excess of 50 percent for a psychiatric disability is remanded.

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

REASONS FOR REMAND

The Veteran had active service from October 2006 to October 2007.

In September 2019, a videoconference hearing was held before a Veterans Law Judge (VLJ); a transcript is of record.  In November 2022, the Veteran was notified that the VLJ who had conducted the hearing was no longer employed at the Board.  The Veteran was informed that if she did not respond within 30 days of the date of the letter, the Board would assume another hearing was not wanted.  The Veteran has not responded.  Accordingly, the Board finds the matter is ready for adjudication.

This matter was previously before the Board, most recently in October 2021, when the Board granted an initial 50 percent for the period prior to April 24, 2020, and denied an initial rating in excess of 50 percent for a psychiatric disability.  The Veteran appealed the Board's denial of a rating in excess of 50 percent to the United States Court of Appeals for Veterans Claims (Court).  In an October 2022 order, the Court granted the parties' joint motion for partial remand, vacating the Board's October 2021 decision and remanding the case for compliance with the terms of the joint motion (JMR).

The issue of entitlement to a TDIU was not certified for appeal.  However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The JMR raised the issue of entitlement to TDIU.  However, the Veteran has not submitted any VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), and has not otherwise provided a detailed history of her employment or education/training.  The AOJ has not undertaken development related to this issue.  As such, the Board finds a remand is warranted in order to solicit a completed VA Form 21-8940 from the Veteran detailing work history, along with any other evidence relevant to the issue of entitlement to a TDIU.

Regarding the psychiatric disability, the Board finds the record would benefit if the Veteran were afforded another VA examination to determine the current severity of the psychiatric disability.  

The matters are REMANDED for the following action:

1. Solicit a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran, in addition to any other evidence relevant to the issue of entitlement to a TDIU.

2. Obtain any outstanding treatment records.

3. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the Veteran's service-connected psychiatric disability.  

All pertinent evidence of record should be made available to and reviewed by the examiner.  The examiner must provide a complete rationale for all proffered opinions.  

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Snyder, 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.