Citation Nr: 20021340 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-61 186 DATE: March 25, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 2002 to December 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho. This case was previously before the Board in November 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to a TDIU is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. First, the Board finds that the Veteran’s employment status during the appeal period is not entirely clear. Specifically, he indicated in an August 2014 VA 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) that he had last been employed in 2011 as a bay attendant at a truck wash. See also March 2020 Informal Hearing Presentation. However, an October 2016 Mountain State Tumor Institute treatment record indicated that he was working full-time laying artificial turf. A January 2018 VA spine examination report noted that he began working laying synthetic turf in 2016. A July 2018 VA treatment record indicated that he was working as a general laborer on a fish farm. It is unclear whether the Veteran is currently working, and if so, whether that work constitutes gainful employment. Under 38 C.F.R. § 4.16, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (this includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. On remand, the AOJ should undertake additional development of the Veteran’s claim to determine the dates he has worked and the income he has generated during each year of the pertinent period on appeal. In addition, the November 2018 remand instructed the AOJ to schedule the Veteran for examination(s) to obtain opinions as to the functional impact his service-connected disabilities had on his ability to perform work activities. However, such was never requested or obtained. A remand is required for compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter is REMANDED for the following action: 1. Undertake additional development to determine the dates the Veteran has worked and the income he has generated during each year of the pertinent period on appeal. As part of that development, ask the Veteran to complete and return an updated VA Form 21-8940. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed, schedule the Veteran for opinions on the functional impact his disabilities have on his ability to perform work activities. The Veteran reports an inability to stand or sit for prolonged periods, or to kneel repetitively, due to his service-connected right knee and bilateral lower extremity peripheral neuropathy. He also says he requires proximity to a bathroom due to frequent flares from his Crohn’s disease. He has asserted reoccurrence of his testicular cancer. He reports his sleep apnea causes daytime drowsiness. He reports his acquired psychiatric symptoms have increased in severity, and his anxiety affects employment. The examiners are asked to review the severity of the Veteran’s disabilities and provide opinions on the functional impact (physically and mentally) of his disabilities, and what, if any, accommodations can or must be provided to work under various circumstances (for instance, in his past relevant work, which includes a bay attendant at a truck washing company, a laborer laying sod, and a cattle hand at a cattle ranch; and also in less physically demanding jobs, such as working in an office environment). What types of work, if any, can the Veteran continue to perform, considering the impact of his service-connected disabilities in light of his work and educational history? 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.