Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.

Citation Nr: A26069950 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 260401-643490 DATE: July 30, 2026 REMANDED Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, or by reason of being housebound, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to August 1982, and from February 1984 to October 1996. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2025 rating decision. The Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in April 2026 and elected the evidence submission docket. The Board will consider the evidence of record when the rating decision on appeal was issued on April 10, 2025, and evidence submitted by the Veteran and his representative within 90 days of receipt of the VA Form 10182 on April 1, 2026. 38 C.F.R. § 20.303. The 90-day evidence submission period ended on June 30, 2026. This appeal is reviewed under the Appeals Modernization Act. When a pre-decisional duty-to-assist error occurs, the Board may have those errors corrected before deciding the claims on appeal. The Board may also remand for correction of?any other error by the Agency of Original Jurisdiction in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating a Veteran's claim.?38?C.F.R. §?20.802. 1. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. The December 2024 application for TDIU states the Veteran wished to raise the issue "as part and parcel of my pending claims." The Veteran had pending claims for service connection for ischemic heart disease, diabetes mellitus, and bilateral hearing loss. The Board issued a decision in July 2026 that granted service connection for heart disease and diabetes and remanded the claim for service connection for bilateral hearing loss. Insufficient evidence has been submitted in support of the claim for a TDIU by either the Veteran or his representative. The evidence does not adequately address the Veteran's work and education history. Although the Veteran's representative submitted additional private treatment records within the 90-day period allowed for evidence submission, many of these records pre-date the period at issue in this appeal and do not suggest service-connected disability renders the Veteran unable to secure or follow a substantially gainful occupation. While the December 2024 application suggests the Veteran believes his heart disease, diabetes mellitus, and hearing loss may prevent him from securing or following a substantially gainful occupation, neither the Veteran nor his representative have argued any basis for a TDIU. The Board further notes that the Veteran's hearing loss is not service connected. The most recent examinations for any service-connected disabilities were examinations for the Veteran's hypertension and left shoulder adhesive casualties provided in August 2024. The hypertension examination suggests hypertension causes no functional impairment, and the shoulder examination shows impairment on the Veteran's ability to perform extended periods of posting, pulling, lifting, and driving. As noted above, the Veteran's occupational and training history is somewhat unclear, and these two examinations alone do not provide a sufficient basis for the Board to adjudicate the TDIU. The most recent VA examinations for any of the Veteran's other service-connected disabilities were provided over ten years ago in March 2015. These examinations show VA examiners found little to no impact on the Veteran's ability to work was caused by the majority of the Veteran's service-connected disabilities. The Board observes the Veteran's disabilities are mostly assigned 0 or 10 percent ratings, consistent with an overall low level of impairment. The Veteran's gastroenteritis is rated 30 percent disabling, and the March 2015 examiner found no impact on his ability to work. The Veteran's application for a TDIU was received in December 2024 without evidence addressing the current severity of the Veteran's service-connected disabilities or their impact on the Veteran's ability to secure or follow a substantially gainful occupation. VA's duty to assist includes providing a medical examination if an examination is necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4). The Veteran's application for a TDIU is best considered a claim for an increased rating in an attempt to be appropriately rated for service-connected disabilities. VA did not attempt to obtain any examinations upon receipt of the Veteran's application for a TDIU. The Veteran has never been provided an examination for his service-connected ischemic heart disease and diabetes mellitus. Considering the foregoing, the Board finds that obtaining VA examinations to assess the severity of the Veteran's service-connected disabilities were necessary before the April 2025 rating decision was issued in order to properly adjudicate the Veteran's claim for a TDIU. 38 C.F.R. § 3.327 (a). The evidence does not include a VA Form 21-8940 Application for Increased Compensation Based on Unemployability. The form would include information material to the Veteran's claim for a TDIU. Nevertheless, the Board finds no pre-decisional duty-to-assist error occurred before the April 2025 rating decision on appeal was issued with regard to any failure to provide or obtain a completed VA Form 21-8940. The Veteran's application for a TDIU was received in December 2024. The Agency of Original Jurisdiction mailed the Veteran and his representative a copy of the VA Form 21-8940 in a letter dated December 16, 2024. No response was received. While VA has a statutory duty to assist Veterans in developing evidence pertinent to a claim, the Veteran and his representative also have a duty to cooperate with the VA in developing evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As such, remand is not warranted to correct a pre-decisional duty-to-assist error and provide the Veteran another copy of a VA Form 21-8940. The Veteran and his representative may submit a completed VA Form 21-8940 while the claim for a TDIU is otherwise being developed. 2. Entitlement to SMC. The Veteran also seeks SMC based on need for regular aid and attendance. The April 2025 rating decision denied entitlement to SMC at the housebound rate. SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as a result of the service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities and so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In determining the need for regular aid and attendance, consideration will be given to the "inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment." 38 C.F.R. § 3.352 (a). SMC by reason of being housebound is payable if a Veteran has a service-connected disability rated as total and either: (1) has an additional service-connected disability or disabilities independently ratable at 60 percent or more; or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered to be permanently housebound when he or she is substantially confined to his or her dwelling and the immediate premises (ward or clinical areas if institutionalized) by reason of service-connected disability or disabilities reasonably certain to remain throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The evidence currently available does not suggest any of the criteria for aid and attendance outlined above are met. The Veteran's service-connected disabilities also do not meet the statutory requirements for SMC at the housebound rate as he does not have one disability rated total with others independently ratable at 60 percent or more. There is likewise no indication the Veteran is confined to his dwelling or the immediate premises due to his service-connected disabilities. Neither the Veteran nor his representative have presented any relevant argument or evidence in support of the claim for SMC. The December 2024 application for SMC due to aid and attendance simply states the Veteran wished to raise the issue "as part and parcel of my pending claims." The Veteran did have pending claims for service connection for ischemic heart disease, diabetes mellitus, and bilateral hearing loss. The Board issued a decision in July 2026 that granted service connection for his heart disease and diabetes and remanded the claim for service connection for bilateral hearing loss. No further argument or evidence regarding aid and attendance, or the housebound criteria, has been submitted. However, the claim for SMC is intertwined with the claim for a TDIU that the Board is also remanding. A claim is inextricably intertwined when the adjudication of one claim could have a significant impact on the adjudication of another claim. Harris v. Dewinsky, 1 Vet. App. 180 (1991). Material evidence will be developed in connection with the claim for a TDIU, including new VA examinations to assess the severity of the Veteran's service-connected disabilities, which could have a significant impact on whether SMC is warranted due to aid and attendance or at the housebound rate. As such, the claim for entitlement to SMC is also remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for new VA examinations to assess the severity of the Veteran's service-connected disabilities: gastroenteritides, left shoulder adhesive casualties, right knee condition, lower back degenerative disc disease, tinnitus, diabetes mellitus type 2, scar residuals pilonidal cyst surgeries, right third toe fracture with residual pain, allergic conjunctivitis, sinusitis, hypertension, and ischemic heart disease. The examiners shall include findings regarding the impact of each disability on the Veteran's ability to work. 2. After obtaining new VA examinations for the Veteran's service-connected disabilities, take any appropriate action deemed necessary to develop and adjudicate the Veteran's claims for TDIU and SMC. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Morse, S. 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.