Citation Nr: 18153131
Decision Date: 11/27/18	Archive Date: 11/27/18

DOCKET NO. 08-26 358
DATE:	November 27, 2018
REMANDED
Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis is remanded.
REASONS FOR REMAND
The Veteran, who is the appellant, had active service from June 1968 to June 1971.  
In a January 2017 decision, the Board of Veterans’ Appeals (Board) denied an evaluation in excess of 10 percent for PTSD prior to December 1, 2014 and in excess of 50 percent from December 1, 2014.  The Board also denied the Veteran’s claim for a TDIU.  
Thereafter, the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court).  
In an April 2018 Memorandum Decision, the Court affirmed the Board’s decision as it related to the evaluations assigned for the Veteran’s PTSD disability.  The Court also vacated the Board TDIU decision and remanded this matter to the Board for action consistent with the decision.  
In the April 2018 decision, the Court noted that the appellant argued that the Board failed to provide adequate reasons or bases for its denial of extraschedular referral for TDIU.  The Court observed that the appellant argued that the Board ignored evidence that his PTSD symptoms caused him to retire early from ATF and forced him to close his family restaurant, and that the Board should have discussed whether this demonstrated that his ability to work was limited to marginal employment.  The Court agreed with the appellant.  It observed that as the appellant noted, he clearly stated in his December 2013 testimony before the Board that he had retired early from ATF because his PTSD symptoms were worsening, and that he subsequently worked at his family restaurant until he had to close it in February 2012 due to his changing attitude and personality.  The Court stated that despite its finding that the aggregate of the Veteran’s service-connected disability was not severe enough to preclude him from working at jobs that he had related experience and education to perform," the Board wholly failed to discuss whether his ability to work was limited to marginal employment.  The Court remanded the matter for the Board to provide an adequate statement of reasons or bases regarding the evidence suggesting that the appellant was limited to marginal employment.  The Court noted that the Veteran clearly worked at a “family business,” one of the enumerated marginal employment indicators for purposes of 38 C.F.R. § 4.16.
Based upon the above, a remand is therefore warranted for referral to the Director, Compensation Service, to consider entitlement to a TDIU under 38 C.F.R. § 4.16(b).
The matter is REMANDED for the following action:
1. Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information, average hours worked, etc., and clearly identify periods of unemployability due to his service-connected disability throughout the entire period on appeal. 
2. Contact the Social Security Administration (SSA) and request the Veteran's earning statements from 2009 forward.  If the SSA informs that it cannot provide earnings statements to VA without the Veteran's approval, undertake to obtain any documentation needed from the Veteran to enable to AOJ to obtain his SSA earnings statements.
3. After performing (1) and (2) above, refer to the Director, Compensation Service the issue of entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b).  The Director is required to address the issue of marginal employment, to include the Veteran’s employment in the family restaurant business.  All findings and opinions should be associated with the claims folder.
 
K. Parakkal
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. S. Kelly, Counsel