Citation Nr: 24015771 Decision Date: 04/11/24 Archive Date: 04/11/24 DOCKET NO. 19-13 808 DATE: April 11, 2024 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating higher than 50 percent for the Veteran's service-connected PTSD. In a January 2019 rating decision, the RO increased the rating for the Veteran's PTSD to 70 percent, effective May 25, 2017. In October 2022, the Board granted a 70 percent rating for PTSD prior to May 25, 2017, but denied a rating higher than 70 percent, thereafter. That decision is final and the issue of an increased rating for PTSD is no longer in appellate status. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100(a). The Board also recognized that the issue of entitlement to a TDIU was raised by the record and remanded the claim for further development, to include providing the Veteran with a TDIU application form. In December 2022 correspondence, the RO provided the Veteran with a TDIU application, requesting that he complete and return the form to the RO. Therefore, the Board finds substantial compliance with its October 2022 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The RO denied the claim in the February 2023 Supplemental Statement of the Case because the Veteran did not submit the TDIU application. In April 2024, the Veteran submitted his TDIU application, in which he stated that he last worked full time in February 2009 when he became too disabled to work due to his PTSD. However, April 2009, July 2009, and August 2009 VA treatment records reflect that the Veteran reported working at a surgical center and an ambulatory center. During an April 2010 VA appointment, he reported that his job was going well. Notably, an August 2015 VA treatment record reflects the Veteran's report that he was working seven days a week, 12 hours a day for at least part of the period from 2008 to 2012 as a skilled manual laborer. The nature and span of the Veteran's employment history is essential to proper adjudication of this claim. 38 C.F.R. § 4.16. Therefore, remand is warranted for clarification of the Veteran's employment history prior to further Board review. The Board emphasizes that the Veteran maintains the ultimate burden to establish entitlement to a TDIU. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Lastly, it is not clear whether all of the Veteran's service personnel records have been associated with the electronic claims file. Therefore, on remand, the RO should undertake such development. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the electronic claims file. 2. Ensure that all available service personnel records are associated with the electronic claims file. If it is determined that records are unavailable, or that further attempts to obtain them would be futile, a formal memorandum to this effect shall be associated with the claims file, and the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Provide the Veteran with an application for entitlement to TDIU (Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940) and employment information request form (VA Form 21-4192) and request that he complete and return the forms to help ensure that VA has all pertinent information regarding his educational background and employment history. Allow a reasonable time for reply. 4. After undertaking any additional development deemed necessary readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.