Citation Nr: 21001928 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-25 211 DATE: January 12, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to July 1975. This appeal arises from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), and the Board of Veterans’ Appeals (Board) remanded the TDIU issue in April 2018 and June 2020. The June 2011 rating decision continued a 20 percent rating for the Veteran’s back disability and denied entitlement to a TDIU. The Board remanded the back issue in November 2017 and noted in the April 2018 and June 2020 remands that the TDIU issue had been raised by the record as part and parcel to the Veteran’s claim for a higher rating for his back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation). Entitlement to a TDIU is remanded. The Veteran’s March 2011 and September 2011 TDIU claim forms (VA Form 21-8940) show that he last worked full-time in November 2010 as an assistant manager at a retail store. The Veteran listed his back disability regarding which service-connected disability prevents him from securing or following any substantially gainful occupation. Additionally, in February 2011, the Veteran submitted lay statements from family members, along with his own statement, contending that he cannot work due to back pain. The Veteran’s service-connected disabilities include a back disability (Scheuermann’s disease, rated as 20 percent disabling) and the associated bilateral lower extremity radiculopathy (rated as 20 percent disabling for each lower extremity), and a right fibula disability (rated as 20 percent disabling) for a currently assigned combined rating of 60 percent. The Board notes that the Veteran was granted service connection for the back-related bilateral lower extremity radiculopathy in an April 2020 rating decision. VA afforded the Veteran several examinations in connection with his service-connected back disability in March 2011, April 2011, November 2015, December 2017, and September 2019. Significantly, the April 2011 examiner opined that, at that time, it was likely that the Veteran would not be able to sustain gainful employment in a sedentary job due to his chronic symptoms of degenerative disc disease (DDD) including pain, paresthesias, and numbness in lower extremities. The examiner noted that DDD was not likely related to his military service. However, as mentioned above, since the April 2011 examination, the Veteran was granted service connection for back-related bilateral lower extremity radiculopathy in an April 2020 rating decision. Furthermore, the November 2015 examiner opined that the Veteran’s back disability would have mild to moderate impact on his ability to perform sedentary employment, but also stated that his back disability would have a severe impact on his ability to perform sedentary employment due to limited range of motion and pain upon lifting, pushing/pulling, prolonged sitting/standing/walking. Additionally, the September 2019 examiner noted that the Veteran was working part-time and opined that a statement regarding TDIU “is not able to be fairly and accurately rendered at this time. However, . . . [the Veteran] is currently employed by an employer who allows for reasonable accommodations for his back issues.” Since the grant of service connection for back-related lower extremity radiculopathy in April 2020, the Veteran has not been afforded an opinion regarding TDIU. Therefore, the Board finds that remand is warranted to obtain a new VA opinion, and examination if deemed necessary, regarding whether the Veteran’s service-connected disabilities, to include the recently service-connected lower extremity radiculopathy, prevent him from securing and following substantially gainful employment. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that, in June 2020, the Board remanded the TDIU issue to obtain more employment information from the Veteran “so that the Board could make a determination about whether this employment constitutes marginal employment for VA purposes.” Accordingly, the RO sent the Veteran correspondence in June 2020 that informed him additional evidence was needed for his TDIU claim and that included forms which could provide useful information if completed. However, the Veteran did not reply to this correspondence. The RO again requested this information in July 2020 but received no response from the Veteran. As such, in October 2020, the RO sent the Veteran notification that it determined further attempts to obtain such evidence would be futile. However, given the instant remand, the Board finds that the RO should give the Veteran another opportunity to provide such evidence. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, (Veteran’s Application for Increased Compensation Based on Unemployability), to include instructions on completing and returning the form to include indicating the period of time the Veteran has been currently working part-time at a retail store, as reported at the September 2019 VA examination. If possible, the Veteran should be specifically requested to provide information regarding any special circumstances/accommodations provided at such employment for his service-connected disabilities. 2. Forward the claims file to an appropriate medical professional to opine on the aggregate effect of the Veteran’s service-connected disabilities on his employability. The need for an in-person examination is left to the discretion of the examiner. The Veteran’s current service-connected disabilities include a back disability (Scheuermann’s disease, rated as 20 percent disabling) and the associated bilateral lower extremity radiculopathy (rated as 20 percent disabling for each lower extremity), and a right fibula disability (rated as 20 percent disabling). The examiner is asked to describe the effects the service-connected disabilities have on the Veteran’s ability to secure or follow a substantially gainful occupation when considering his educational background and vocational experience, but not his age or nonservice-connected disabilities. In providing such opinion, the examiner should consider sedentary employment and the April 2011 examiner’s opinion that it was likely the Veteran would not be able to sustain gainful employment in a sedentary job due to his chronic symptoms of DDD including pain, paresthesias, and numbness in lower extremities. (Continued on the next page)   The examiner should consider all medical and lay evidence of record and provide a complete rationale or explanation for any opinions. 3. After the above development and any other development deemed necessary is completed, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.