Citation Nr: 1804406 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 09-01 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel INTRODUCTION The Veteran had active service from August 1984 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed, and in an April 2012 decision, the Board denied the Veteran's cervical spine claims and remanded her migraine claim to the agency of original jurisdiction (AOJ) for additional development. The Veteran appealed that part of the Board's decision pertaining to the cervical spine claims, and in a May 2014 Memorandum Decision the United States Court of Appeals for Veterans Claims (Court) vacated the Board's April 2012 decision regarding the cervical spine claims and remanded the case for additional development. The case was returned to the Board in January 2015, at which time both the cervical spine claims and the migraine claim were remanded for further development. In January 2016 the Board again remanded the cervical spine claims and the migraine claim for further development. In an August 2016 decision, the Board continued the then-current cervical spine disability rating at 20 percent, but awarded a 50 percent rating for the Veteran's migraine disability, the highest schedular rating available for that disability. In the August 2016 decision, the Board also noted that the issue of total disability based on individual unemployability (TDIU) had been raised by the record. Accordingly, the Board remanded that issue to the AOJ for further development and adjudication. In October 2017 the AOJ issued a supplemental statement of the case (SSOC) denying entitlement to TDIU. The case has now returned to the Board for further consideration. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). The regulation explains that marginal employment shall not be considered "substantially gainful employment." Marginal employment is defined as employment wherein a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id.; see also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases of employment in a protected environment, as in a family business or sheltered workshop. Id. In the August 2016 remand, the Board instructed the AOJ to provide the Veteran with appropriate VCAA notice for TDIU, and to perform any additional development necessary to clarify the Veteran's employment status and capacity, to include obtaining from the Veteran a detailed statement on VA Form 21-8940 regarding her post-service work history as well as her education and training. After performing the necessary development, the AOJ was to readjudicate the TDIU claim. In January 2017 the AOJ provided the Veteran the proper VCAA notice for TDIU. In February 2017 the Veteran submitted a formal TDIU application on VA Form 21-8940, which listed a work history of two employers and omitted information regarding the Veteran's past 12 months' income. At the same time, the Veteran submitted a VA Form 4192, Request for Employment Information in Connection with Claim for Disability (in which a Veteran's employers provide information about his or her dates and characteristics of employment) from each of three different employers. The dates of employment on one of those forms, that of Spectra Food Services & Hospitality, was identical to the dates on yet a fourth form, apparently submitted, unsigned, by a different employer, Ovations Food Services-and those dates disagree with the ones listed by the Veteran for Ovations Food Services on her submitted Form 21-8940. Moreover, it is not immediately apparent which parts of the Forms 21-4192 were filled out by the Veteran and which by the respective employers. Thus, unfortunately, the Veteran's employment and earnings history remains unclear. The Board notes that the AOJ made additional efforts to obtain Forms 21-4192 from two of the Veteran's employers, Ovations Food Services and Pizza Hut. However, the record contains no similar additional development for Spectra Food Services and Hospitality, whose submitted Form 21-4192, as noted above, lists dates of employment identical to those listed for Ovations Food Services. The AOJ provided the Veteran an SSOC in September 2017 denying the TDIU claim, and a second SSOC in October 2017 that considered additional information but reached the same result. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the development required by the Board in its August 2016 remand remains incomplete. The Board recognizes the frustration that may be caused by the additional delay in adjudication of the Veteran's claim; however, a remand is necessary in order to ensure a complete record on which the Board can base its decision. Accordingly, the case is REMANDED for the following action: 1. Consistent with guidance in the M-21 Manual or other appropriate VA procedural guidance: (a) Make appropriate efforts to inform the Veteran and her representative of the inconsistencies in the submitted Forms 21-8940 and 21-4192 and obtain from the Veteran a new Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with a complete and accurate listing of employers and dates of employment, fully executed and signed by the Veteran. All such efforts must be noted in the claims file. (b) Make appropriate efforts to obtain new Forms 21-4192, Request for Employment Information in Connection with Claim for Disability, from the Veteran's employers (i) Ovations Food Services, (ii) Spectra Food Services and Hospitality, (iii) Pizza Hut, and (iv) Bohandi, Inc. Each form submitted must be fully executed and signed in each case by the employer. All such efforts must be noted in the claims file. (c) Make appropriate efforts to obtain a new Form 21-4192, Request for Employment Information in Connection with Claim for Disability, from any employer identified by the Veteran in any newly provided Form 21-8940, fully executed and signed in each case by the employer. All such efforts must be noted in the claims file. 2. After the above efforts have been completed, the AOJ should readjudicate the TDIU claim. If the benefit sought on appeal remains denied, the Veteran and her representative should be provided with an SSOC and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).