Citation Nr: 18143354 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-13 276 DATE: October 18, 2018 REMANDED Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service from May 2010 to October 2010. In July 2018, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran underwent a VA examination in April 2016 in connection with his claim for a TDIU. However, they examination report is not fully adequate as the examiner did not provide an opinion as requested regarding individual unemployability. Rather, it was noted that the original service-connected diagnosis of Adjustment Disorder secondary to service-connected knee injury condition is not continued due to lack of current mental health symptomatology related to residual knee problems. Nevertheless, service connection remains in effect for the psychiatric disability at the 70 percent rate. Accordingly, the Board finds that remand is warranted for a medical opinion to address the Veteran’s functional impact due to the combination of his service-connected disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, during the July 2018 Board hearing, the Veteran stated that he currently employed by a temporary agency. However, it is unclear from the record whether the Veteran’s position with a temporary agency is considered to be “marginal” employment. To help make this determination, the AOJ should ask the Veteran to fill out another VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), and submit it back to the AOJ, to determine the specifics of the Veteran’s employment history and whether his job with a temporary agency is “marginal” employment. The matter is REMANDED for the following actions: 1. Send the Veteran another VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), and ask that he submit it back to the AOJ, to determine the specifics of the Veteran’s recent employment history and whether his job with a temporary agency constitutes “marginal” employment. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16 (a). At present, it is unclear from the record whether the Veteran’s position with a temporary agency is considered to be “marginal” employment. 2. Obtain all VA treatment records for the Veteran dated from March 2016 to the present, and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination with an appropriate examiner to address the combined functional impact that the Veteran’s service-connected disabilities (adjustment disorder with mixed anxiety and depressed mood; stress fracture, left tibia, with knee degenerative joint disease; snapping scapula syndrome, left shoulder, with degenerative joint disease; and tendonitis of right knee) have on his ability to work. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, to include VA examination reports dated in May and June 2013, February 2014, and March 2016. The examiner should elicit and set forth the pertinent facts regarding the Veteran’s medical, education and employment history; day-to-day functioning; and, industrial capacity. The examiner should address the Veteran’s current ability to function in an occupational environment. If the Veteran is felt to be capable of work despite the service-connected disabilities, the examiner should indicate what type of work the Veteran is capable of as well as any accommodations that would be necessary due to service-connected disabilities. When addressing the functional impact of the Veteran’s service-connected disabilities the examiner must not consider the Veteran’s age, or any non-service connected disabilities. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel