Citation Nr: 21074530 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-43 004 DATE: December 15, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1984 to September 1988, and in the United States Army from July 1989 to June 2000, and February 2003 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018, when it was deemed intertwined with the Veteran's service-connected obstructive sleep apnea (OSA) claim which was being remanded; thus, was deferred pending adjudication of that claim. Most recently, in April 2021, when this matter was remanded by the Board again for further development, particularly to obtain the Veteran's employment information and a functional assessment of his service-connected disabilities and has now been returned to the Board for adjudication. The Board notes that in a June 2021 rating decision, the RO granted the Veteran service connection claim for OSA-Asthma-COPD, secondary to his service-connected posttraumatic stress disorder (PTSD), with an evaluation of 50 percent, effective February 11, 2015. As such, the Veteran's TDIU appeal is the only remaining matter currently before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 1. Entitlement to a TDIU is remanded. The Veteran filed a claim for TDIU on December 21, 2012, reporting that he became too disabled to work in October 2010. He claims that, at that time (in October 2010) he stopped working full time due to his service-connected posttraumatic stress disorder (PTSD). He subsequently filed a new VA 21-4138 Statement In Support of Claim for TDIU in March 2014, attaching a VA Form 21-4192, which reflects that he last worked full time (40 hours/week) at an equipment installation and repair facility thorough October 2011. His TDIU claim was first denied in a June 2014 rating decision, with the RO citing to several reasons, including that the Veteran's VA exam shows that his service-connected disabilities do not impact his employment to the level warranting the individual unemployability benefit, and thus, he is considered gainfully employed. His TDIU claim was deemed subsequently reopened but still denied in a January 2015 rating decision, with the RO citing to similar reasons. The Veteran filed a Notice of Disagreement (NOD) in February 2015 and this appeal ensued. The Veteran reported during a July 2021 Compensation and Pension (C & P) functional assessment examination that since 2018 his line of work has been in insurance sales and that he currently works part-time. He also reported that he is also working as a minister and simultaneously taking classes towards his master's degree in Divinity. See, July 2021 C & P examination. Although this matter was remanded by the Board in April 2021 for further development, which included specifically requesting that the Veteran provide additional information concerning his occupational and educational histories (an updated VA Form 21-8940, Application for IU), to date, the Veteran has not provided this information, in spite of two separate requests (April 2021 and June 2021 Subsequent Development Letters) by the RO. The record reflects that besides PTSD, the Veteran is also service connected for several other disabilities with compensable ratings, resulting in a combined disability rating of 100 percent, effective January 29, 2019. Notwithstanding this fact, the Board notes that the issue of special monthly compensation (SMC) has not been adjudicated. VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. Bradley v. Peake, 22 Vet. App. 28, 293-94. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16 (a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16 (a). In light of above, the Board concludes that another remand is necessary in order to provide the Veteran with a final opportunity to inform VA of his complete updated occupational history, to include the names, addresses, and contact information of the Veteran's former and current employer(s) and the corresponding dates of employment. This will allow VA to conduct development necessary to substantiate whether he was substantially or marginally employed, including if such employment was a "sheltered environment." Given these facts, the Veteran is encouraged to fully cooperate with VA's requests to substantiate his appeal, specifically to obtain his complete employment history, which is currently outstanding, as VA's duty to assist him in doing so is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following actions: 1. The Agency of Jurisdiction (AOJ) should give the Veteran one final opportunity to develop his claim for TDIU, to include another request for the Veteran to submit a 21-8940 Veterans Application for Increased Compensation Based on Unemployability, and for a completed VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits from the Veteran's identified employer(s). In connection with the above, the Veteran must provide VA with names, addresses, and contact information of his former employers and the dates of employment since December 21, 2011. If such employers provided any specific accommodations, the employer(s) must also be requested to outline any such accomodation(s) that the Veteran was provided in connection with functional impairment associated with his service-connected disabilities, including the Veteran's specific job responsibilities and duration/hours per day. The AOJ must also request that the Veteran provide evidence of his income, such as pay stubs and W2s, from December 21, 2011, to the present. The Veteran is reminded that the duty to assist is a two-way street, and he cannot passively wait for VA's assistance in circumstances such as this, where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is hereby advised that an accurate picture of his earnings and employment history is necessary to adjudicate this claim, and if he does not ensure VA has this information, then his claim will be considered based on incomplete evidence. It is ultimately his responsibility to submit the evidence needed to support his claim. 2. Following this development, and any other development needed to ensure substantial compliance with this Remand, the AOJ must then adjudicate the Veteran's TDIU appeal. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.