Citation Nr: 18155918 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 06-06 214 DATE: December 6, 2018 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REFERRED The issues of entitlement to increased ratings for service-connected peroneal nerve disabilities of the bilateral lower extremities appeared to have been raised in a March 2014 statement; is currently under review by the Agency of Original Jurisdiction (AOJ) for adjudication; and will as such not be discussed here. REASONS FOR REMAND The Veteran served on active duty from August 1971 to August 1993. This matter comes before the Board of Veteran’s Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter was previously before the Board on multiple occasions. In January 2012 the Board determined that the issue of TDIU was reasonably raised as part of the Veteran’s increased rating claim for his chronic lumbar strain, and the matter was remanded for additional development. The issue was remanded for further development in a May 2016 Board decision. In September 2017, the Board issued a decision that denied entitlement to a TDIU. The Veteran appealed this decision to the Court. In a May 2018 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the September 2017 decision back to the Board. The matter was originally before the Board on appeal for an increased rating claim for his chronic lumbar strain from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge during a February 2007 hearing. A transcript of the hearing is associated with the Veteran’s claim file. The September 2017 Board decision remanded the Veteran’s claims for entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity associated with the low back disability; a separate rating for radiculopathy of the left lower extremity; and a rating greater than 40 percent after September 17, 2009, for chronic lumbar strain. While these issues are under the jurisdiction of the Board, they are currently being processed by the RO and will not be addressed in this Board decision. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Total disability will be considered to exist 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the alternative, if the Veteran does not meet the percentage requirements, but is nevertheless rendered unable to obtain or maintain substantially gainful employment by reason or one or more service-connected disabilities, the matter must be submitted to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(a). Here, the Veteran meets the minimum schedular criteria for TDIU under 38 C.F.R. 4.16(a) as he is currently combined to be 80 percent disabling. In determining whether Unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In that regard, it is unclear from the evidence, the true extent of the Veteran’s level of education, special training, and previous work experience. In February 2012, the RO sent the Veteran correspondence requesting that he complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to secure information necessary to properly adjudicate the claim for a TDIU. To date, the Veteran did not submit a completed VA Form 21-8940. A substantially complete VA Form 21-8940 is critical to a claim for a TDIU as it gathers relevant and indispensable information regarding the Veteran’s disabilities and employment and educational histories. The September 2013 VA joints examiner noted that the Veteran worked at O’Reilly’s Auto Parts. However, during an August 2016 VA back examination, the Veteran stated that he had retired from his position as a salesman in March 2015 and that he was falling too much. In August 2016, the Veteran was examined again for his low back and related neurological conditions of the bilateral lower extremities. The VA examiner provided an opinion that: “the combination of all the Veteran’s service-connected disabilities chronic lumbar strain, disorders of bilateral peroneal nerves, tinnitus, left great toe, coronary artery disease, and left rib would not affect his ability to engage in all forms of substantially gainful employment.” However, this opinion provided by the VA examiner did not take into consideration the full extent and nature of the Veteran’s work history and education. The Veteran was examined at the VA for his low back and neurological conditions in February 2018. The examiner indicated that the Veteran’s thoracolumbar spine (back) condition does impact his ability to work as it limits his ability to sit, walk, and stand for an extended period of time. He further stated that the Veteran is limited in his ability to work with his unpredictable loss of balance and falls when his legs “give out.” Yet, it is unclear from this statement whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In issuing the September 2017 decision, the Board relied in part on evidence from the August 2016 VA examination. As noted in the JMR, the parties agreed that the Board had erred when it provide an inadequate statement of reasons or bases, in violation of 38 U.S.C. § 7104(d)(1), in its denial of TDIU. Accordingly, it is necessary to remand this matter so that an adequate addendum medical opinion and the Veteran’s complete work and educational history is obtained. The matter is REMANDED for the following action: 1. Obtain additional VA medical treatment records from March 2016 to present. All reasonable attempts should be made to obtain any identified records. 2. Request that the Veteran provide a detailed current accounting of his work history, dating from 2012 to the present, including by completing and returning VA Form 21-8940. Ask the Veteran to provide IRS tax returns from the year he claims he was unable to secure and maintain substantially gainful employment through 2017 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from the year he claims he was unable to secure and maintain substantially gainful employment through 2017 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 3. Once the above have been completed, obtain a VA medical opinion to determine whether the functional effects of the Veteran’s service-connected disabilities, alone or acting in concert, preclude him from securing and following substantially gainful employment, consistent with his education and occupational expertise. This opinion must be provided without consideration of his nonservice-connected disabilities or age. If an opinion cannot be provided without an examination, one should be provided. The examiner shall include a discussion of ALL the Veteran’s service-connected disabilities. A rationale shall be provided for all opinions offered. (CONTINUNED ON NEXT PAGE) 4. Thereafter, readjudicate the claim. If the benefit sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel