Citation Nr: 18146798
Decision Date: 11/01/18	Archive Date: 11/01/18

DOCKET NO. 14-06 202
DATE:	November 1, 2018
REMANDED
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
This matter was previously before the Board in November 2017, when it was remanded so the Agency of Original Jurisdiction (AOJ) could consider TDIU in the first instance following the Veteran’s grant of service connection for a back disability with radiculopathy affecting the right lower extremity.
As explained in its November 2017 remand, the Board deems the Veteran’s request for a Board hearing withdrawn.  See 38 C.F.R. § 20.704(c).
Although the AOJ substantially complied with the Board’s prior remand directives, the Board finds additional development is necessary based on evidence obtained after its November 2017 remand.  More specifically, the Veteran has asserted his most recent employer terminated him in February 2011 because he was unable to meet the physical demands of his position even with significant accommodations.  Yet, VA treatment records associated with the claims file in March 2018 suggest the Veteran continued to work part-time at a warehouse until at least some point in 2016, possibly into 2017.  A May 2017 VA treatment note that indicates the Veteran retired from his position at the warehouse is the first confirmation that the Veteran was no longer working.  VA treatment notes from 2011 through 2016 clearly indicate the Veteran continued to work on a part-time basis at a warehouse.  Evidence of part-time work is not a bar to the Veteran’s TDIU claim, but the Board finds it needs more details regarding the nature and frequency of the Veteran’s work to make an informed decision as to whether the work constitutes marginal employment within the meaning of 38 C.F.R. § 4.16.
Additionally, VA examiners have maintained the Veteran’s service-connected disabilities do not prohibit sedentary work.  The record contains a detailed account of the Veteran’s occupational history for the period from approximately 2007 to 2012.  During this period, the Veteran worked solely in positions that are physical in nature, such as construction and warehouse jobs.  There is limited evidence regarding his education or his occupational history prior to 2007.  The Board finds this information necessary to determine whether the Veteran’s educational and occupational history qualifies him for sedentary positions that constitute substantially gainful employment (i.e., other than marginal employment).  The Board acknowledges the Veteran’s assertions that his service-connected back disability prevents even sedentary employment because he is unable to sit for extended periods of time.  The Board will assess the credibility of these statements based upon the totality of the record following the development of the additional evidence as outlined below.
The matter is REMANDED for the following action:
1. Ask the Veteran to provide an updated VA Form 21-8940 detailing his employment history, to include part-time employment, for the five-year period from 2012 through 2017.
If the Veteran reports no employment history from 2012 through 2017, he should provide a statement accounting for the discrepancies regarding continued part-time employment noted by multiple VA providers throughout his treatment history during this period.
2. Ask the Veteran to provide a summary of his full educational and occupational history following his separation from active service in December 1971.
 
Thomas H. O'Shay
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. S. Kyle, Counsel