Citation Nr: 21004006 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-20 712 DATE: January 25, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis for the period prior to November 30, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1963 to August 1965. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran appeared at a September 2011 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). This matter has a lengthy procedural history that is incorporated herein by reference. Addressing the most relevant procedural history, this matter was last before the Board in April of 2019 when it was remanded for additional development. The case has now been returned to the Board for further appellate action. The appeal is again REMANDED to the AOJ. In this case, the Veteran’s disability ratings for his service-connected disabilities do not meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a) for the period prior to November 30, 2017. More specifically, the Veteran does not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent. Accordingly, consideration of whether the Veteran is unemployable under 38 C.F.R. § 4.16 (a) is not applicable for this period. That notwithstanding, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be submitted to the Director of Compensation Service for extraschedular consideration. In this regard, as the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, this case was remanded in April of 2019 in order for the claim to be submitted to VA’s Director of Compensation Service after it was determined that such consideration was warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In October of 2020, VA’s Director for Compensation Service reviewed the Veteran’s claim and determined that the evidentiary record demonstrated that despite having a combined rating of only 50 percent, the symptomatology associated with the Veteran’s service-connected conditions warranted TDIU on an extra-schedular basis, including his left foot injury residuals (20 percent); right foot degenerative joint disease (10 percent); right foot metatarsalgia (10 percent); right foot peripheral nerve condition (10 percent); tinnitus (10 percent); right foot plantar fasciitis (0 percent); and bilateral hearing loss (0 percent). The Director for Compensation Service found that the Veteran’s service-connected conditions warranted TDIU on an extra-schedular basis as of November 30, 2017, the date the combined service-connected evaluation was increased to 50 percent. It was stated in the October 2020 VA Memo that, “[p]rior to that date, a finding of total disability caused solely by service-connected conditions is not shown.” The Director for Compensation Service found that the Veteran’s service-connected conditions did not warrant TDIU on an extra-schedular basis prior to November 30, 2017. However, as the claim was previously and properly referred for extra-schedular consideration, the issue may now be adjudicated by the Board. In that regard, pursuant to Harper v. Wilkie, the issue of TDIU prior to November 30, 2017 is still pending in conjunction with the claims for increased rating. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). In this case, it is unclear from the record exactly when the Veteran ceased full-time employment, what kind of employment he had, why he stopped working, and whether his work beforehand constituted marginal employment. The Board observes that the Veteran reported on his November 2012 VA Form 21-8940 that due to his “bilateral feet” conditions, he had been precluded from full-time employment since 2006. However, he did not list any information relevant to his employment for the last five years he worked. In contrast, the Veteran’s Social Security Administration (SSA) records indicate that he reported to that agency that he became unable to work in 2007 due to his “bronchiolitis obliterans w/organizing pneumonia” and that “the respiratory system won’t let me work because I don’t have the stamina”. He stated that, “I stopped working because of my [respiratory] health condition”. The Veteran reported that while he had previously worked as a machinist at [E. I. D.] Textile until 2002, his most recent employment which lasted until 2007 had been as a realtor earning approximately $10,000 per year. The Board observes that the Veteran has not been service-connected for a respiratory condition at any point. As the Veteran last submitted a VA Form 21-8940 in November 2012 and as the one submitted at that time was incomplete, he should be asked to complete an updated one on remand. In addition, given the disparity in the evidence of record regarding the Veteran’s employment information and the medical condition that reportedly caused him to cease working during this period, each identified former employer should be asked to complete a VA Form 21-4192 (Request for Employment Information in connection with Claim for Disability Benefits). Further, an earnings statement should be obtained from SSA and associated with the Veteran’s claims file in order to clarify his income for the periods that he did work prior to November 30, 2017. Lastly, the Board notes that an opinion was obtained from a VA examiner in September of 2012 regarding the functional impairment of his service-connected conditions at that time, the Board cannot make a fully-informed decision until an updated opinion is obtained regarding the entire period on appeal prior to November 30, 2017 that considers the combined effect of the Veteran’s then-service-connected disabilities on his ability to maintain gainful employment. The matters are REMANDED for the following actions: 1. Contact SSA and request the Veteran’s earning statements from 2006 through 2017. If SSA responds that it cannot provide earnings statements to VA without the Veteran’s approval, undertake the necessary actions to obtain any documentation needed from the Veteran to enable VA to obtain a copy of his SSA earnings statements. 2. Request that the Veteran complete and return an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 3. Ask [E. I. D.] Textile, the Veteran’s former employer identified in his SSA records, to complete a Request for Employment Information in Connection with Claim for Disability Benefits, VA Form 21-4192. This employer and any other identified on his updated VA Form 21-8940 is specifically asked to: (a) list all dates of the Veteran’s employment, the positions worked, AND rates of pay/salary information for those respective periods; and (b) clarify why the Veteran’s employment ended. 4. Following the completion of steps one through three, obtain an addendum retrospective opinion from an appropriate clinician. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. As the opinion and information requested pertains to the prior state/severity of the Veteran’s service-connected conditions, a full examination of the current state of his conditions is unnecessary. However, if necessary to respond to any inquiry below, the Veteran should be scheduled for an interview, either via telephone or in-person, whichever is more convenient, to obtain such information. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should address: (a.) The combined effect of the Veteran’s service-connected disabilities on his ability to engage in any type of full-time employment for the period prior to November 30, 2017. The clinician should elicit and set forth the pertinent facts regarding the Veteran’s medical history, education and employment history, day-to-day functioning, and industrial capacity. He or she should address the Veteran’s ability to function in an occupational environment. The clinician is advised that being unemployed during the period on appeal is not equivalent to being unemployable for VA purposes. In responding to these inquiries, any side effects the Veteran experienced from medications for the service-connected disabilities should be considered. If the evidence demonstrates that the Veteran experienced varying levels of impairment at different points during the appeal period, the clinician should so state and provide the basis for such conclusion. The clinician must provide a comprehensive report, including complete rationales for all conclusions reached. If the clinician is unable to provide any of the requested information without resorting to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 5. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.