Citation Nr: 21066533 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-13 807 DATE: November 1, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board denied the Veteran entitlement to a TDIU. The Veteran timely appealed the October 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the Board decision as to entitlement to a TDIU. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. Entitlement to a TDIU was raised by the record in conjunction with the Veteran's appeal from the initial rating assigned for his now service-connected hypertension. See Rice v. Shinseki, 23 Vet. App. 1 (2009). The Veteran also submitted a written statement regarding entitlement to a TDIU. See February 2013 Veteran lay statement. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is currently in receipt of a 10 percent rating for his service-connected hypertension, effective March 26, 2002; diabetes mellitus with erectile dysfunction rated as 10 percent disabling from March 26, 2002 and 20 percent disabling from January 28, 2004; residuals of prostate cancer rated as noncompensable from March 26, 2002 and 40 percent disabling from June 23, 2014; and a 60 percent rating for his chronic renal disease effective September 19, 2017. Accordingly, the Veteran has been eligible for a TDIU pursuant to 38 C.F.R. § 4.16(a) since September 19, 2017. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). 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 United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). See 38 C.F.R. § 4.16(a). Regarding the economic component, the Veteran has reported that he retired from the U.S. Postal service in about 2000 or 2001. See January 2002 private treatment records; February 2007, August 2010 VA examination reports. He has also reported that he is employed at a golf course. See June 2006, October 2007 private treatment records. It is unclear from the current record whether the Veteran is currently employed and, thus, it cannot be determined whether the Veteran meets the economic component of a TDIU. See Ray, supra. In this regard, the Board notified the Veteran of the evidence required and lacking in his claim for entitlement to a TDIU in the October 2019 Board remand. In November 2019, the RO sent the Veteran a development letter informing him of the same along with the prescribed VA Forms 21-8940 and 21-4192. The Veteran has not returned the VA Form 21-8940 provided by the RO. However, he has explicitly requested that the Board consider entitlement to a 100 percent rating based on unemployability. See October 2020 Appellate Brief. The Board requires information regarding his employment status in order to address the economic component of his TDIU claim, and will remand the claim once more in an attempt to obtain it, but emphasizes that the duty to assist is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000). It is essential that the Veteran cooperate with the Board and complete this form on remand. If he fails to do so his claim may be denied because the Board lacks information necessary to grant the benefit sought. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant treatment records. 3. Provide the Veteran a copy of VA Form 21-8940 and request that he complete the same with regard to any employment since March 26, 2002, including his position at a golf course. Inform the Veteran that his failure to participate in the processing of his appeal may result in a denial of the benefits sought. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.