Citation Nr: 1806417 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-09 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1997 to September 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA) that denied entitlement to TDIU. The Veteran testified before the undersigned Veteran's Law Judge during a September 2017 videoconference hearing. A transcript is of record. In a phone call in May 2017, the Veteran informed VA that he wished to withdraw the present appeal because he obtained gainful employment. During that phone call and in a subsequent May 2017 letter, VA informed the Veteran that a request to withdraw an appeal must be in writing. A review of the claims file indicates that no such written request was submitted by the Veteran and the Veteran subsequently appeared at the aforementioned videoconference hearing to provide additional evidence regarding TDIU. Accordingly, the Board retains jurisdiction to decide the appeal. The Board notes that, in April 2014, the Veteran informed VA in writing that he wished to withdraw his multiple pending appeals for increased evaluations and continue only with his appeal for TDIU. A veteran or his authorized representative may withdraw any or all issues involved in an appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Accordingly, the Board's jurisdiction is limited to review of the Veteran's claim for TDIU. The claims for increased evaluations for thoracolumbar spine strain, cervical spine strain and right knee retropatellar pain syndrome are no longer before the Board. The Veteran's claims of service connection for right and left lower extremity radiculopathy were severed following notification to the Veteran of a proposal to terminate service connection in April 2017 that was not contested by the Veteran. Accordingly, this matter is also not on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, this claim must be remanded for further development. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. § 3.159(c) (2017). This includes a duty to make reasonable efforts to assist a Veteran in securing evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In that regard, VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency, and it must make reasonable efforts to obtain records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c). Although a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, was completed by the Veteran in March 2014, the record lacks employment information from all but two of the Veteran's previous employers identified on the form. In addition, in his September 2017 testimony, the Veteran identified additional employers not previously included on the form, including his current employer. The Veteran's complete employment history for the period under appeal as well as employment information from each employer identified by the Veteran must be obtained before VA can proceed. Furthermore, in his testimony, the Veteran asserted that although he was employed for most of 2008 to 2016, his employment was sporadic and his earnings were so low that his family would have been "unable to survive" without his spouse's income. The Veteran also identified a period of unemployment from 2013 to 2015, but there is insufficient information in the record regarding the reasons for unemployment and any efforts to obtain employment during that period. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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(a)(1), 4.15."Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). This is to be contrasted with "marginal employment," which generally is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts found basis -- including but not limited to employment in a protected environment such as a family business or sheltered workshop -- when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The record is unclear as to whether the Veteran's work history and earnings during the period under appeal render his employment "marginal." The Board finds that further development is necessary to clarify the Veteran's work history and verify the Veteran's income while employed to determine whether a TDIU is warranted. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete and return VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, and clearly identify periods of unemployability due to his service-connected disabilities throughout the entire period on appeal. When the application is completed and returned, verify the nature of the Veteran's employment history, work schedule, and income consistent with the procedures outlined in the M-21 VA Adjudication Procedure Manual. 2. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claim that has been remanded. If any benefit sought in connection with the remanded claim is denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. _________________________________________________ K. PARAKKAL 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).