Citation Nr: 21075690 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-37 970 DATE: December 21, 2021 REMANDED The claim of entitlement to an effective date earlier than March 2, 2011, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. The claim of entitlement to an effective date earlier than March 2, 2011, for the establishment of basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is remanded. REASONS FOR REMAND The Veteran served in the United States Army Reserve, which service included a period of active duty from September 27, 1990, to September 16, 1991, in addition to multiple verified periods of active duty for training. This appeal to the Board of Veterans' Appeals (Board) arose from September and October 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is a lengthy one involving multiple actions by the Board and an appeal to and remand from the United States Court of Appeals for Veterans Claims (Court). As this procedural history has been detailed in the prior actions in the appeal, it will only be repeated herein as necessary to explain the state of the issues currently before the Board. The instant matters were most recently before the Board in November 2020, at which time they were remanded for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to contact the Social Security Administration (SSA) and request the Veteran's earning statements from 2009 forward. This was not done. Rather, the AOJ requested from SSA the Veteran's SSA medical records, which were furnished to AOJ in January 2021. Notably, the Veteran's records related to his claim for SSA benefits and the resulting disability determination were already of record. Further, the SSA records do not contain any actual wage and earnings data for the Veteran during the relevant time period. Accordingly, because the AOJ did not comply with the terms of the Board's prior remand, another remand therefore required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliances with the terms of the remand). Again, the Board points out that it is seeking verification of the Veteran's earnings from 2009 until he was granted TDIU, effective May 2, 2011, because although the evidence indicates that the Veteran was in fact employed and employable prior to May 2, 2011, the evidence raises a question as to whether the Veteran's annual income was below the poverty level at any point prior to May 2, 2011. See November 2020 Board Remand (containing a detailed discussion of the evidence of record.). If the Veteran's earned income was less than the poverty threshold for one person, he would potentially be entitled to a TDIU even though he was working prior to May 2, 2011. See 38 C.F.R. § 4.16(a) (stating that "marginal employment shall not be considered substantially gainful employment" and further defining marginal employment in terms of the Department of Commerce, Bureau of the Census poverty threshold); see also Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (interpreting the phrase "unable to secure and follow a substantially gainful occupation" to have an economic and a noneconomic component and explaining that the economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person). In the November 2020 remand action, the Board also pointed out that although the Veteran's attorney was arguing that the Veteran's employment prior to May 2, 2011, was not substantially gainful employment and that he was afforded unreasonable accommodations to maintain his position, neither the Veteran, nor his attorney had produced any evidence to support this assertion, such as tax returns, SSA earnings statements, and/or statements from the Veteran's employers regarding any accommodations afforded. The Board thus directed that, on remand, the AOJ was to ask the Veteran to provide any evidence that may substantiate his contentions regarding marginal employment (e.g., tax returns, SSA earnings statements). Additionally, the AOJ was instructed to send to the Veteran and his attorney a VA Form 21-8940 and request that the Veteran complete and return it to VA, to specifically include providing VA with relevant information regarding all employment prior to May 2, 2011, as well as any information as any accommodations made to him in his prior job and any other information pertaining to whether his employment was in a sheltered or protected environment. Notably, the AOJ complied with this remand directive via letter dated in November 2020; however, the Veteran did not respond to the request for information, nor did he return a completed VA Form 21-8940. Despite this, as the issue of entitlement to an earlier effective date for the award of a TDIU must be remanded for the reason set forth above, the Veteran has the opportunity to provide evidence in support of his claim. In this regard, the Board points out that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). The Veteran and his attorney are reminded that a completed VA Form 21-8940 would have contained information critical to the claim of entitlement to an earlier effective date for the award of a TDIU and it is thus imperative that the Veteran return this form on remand. The Board also points out that in the November 2020 remand action, the Board directed that readjudication of the Veteran's claims was to include specific consideration of whether the Veteran's pre-May 2, 2011, employment was of a marginal nature. A review of the AOJ's February 2021 SSOC fails to show that the AOJ gave any consider to whether the Veteran's pre-May 2, 2011, employment was of a marginal nature. On remand, the AOJ must engage in an analysis of whether the Veteran was able to engage in substantially gainful employment prior to May 2, 2011, to include consideration of whether any employment prior to that time was of a marginal nature. Regarding the claim for an effective date earlier than May 2, 2011, for the establishment of basic eligibility for DEA, the Board notes that eligibility for DEA benefits exists if a veteran (1) was discharged from service under conditions other than dishonorable and (2) has a permanent and total service-connected disability. See 38 U.S.C. § 3501(a), (d); 38 C.F.R. § 3.807. In the instant case, the AOJ determined that basic eligibility for DEA existed as of May 2, 2011, the date upon which the Veteran's combined disability rating was increased to 100 percent. Accordingly, as an award of a TDIU prior to May 2, 2011, could serve to establish an earlier effective date for basic eligibility for DEA benefits, the Board finds that the DEA effective date claim must also be remanded as it is inextricably intertwined with the remanded claim of entitlement to a TDIU prior to May 2, 2011. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Send to the Veteran and his attorney a VA Form 21-8940 and request that the Veteran complete and return it to VA, to specifically include providing VA with relevant information regarding all employment prior to May 2, 2011, as well as any information as any accommodations made to him in his prior job and any other information pertaining to whether his employment was in a sheltered or protected environment. 2. The AOJ should contact the SSA and request the Veteran's earning statements from 2009 forward. If the SSA informs the AOJ that it cannot provide earnings statements to VA without the Veteran's approval, the AOJ should undertake to obtain any documentation needed from to the Veteran to enable to AOJ to obtain his SSA earnings statements. The AOJ is reminded the Veteran's SSA medical records are already of record. These records need not be sought again as they do not contain the information required to adjudicate the Veteran's claim. Rather, the Board is seeking actual wage and earnings data for the Veteran's from 2009 to May 2, 2011. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159 (c) with regard to requesting records from federal facilities. All records and/or responses received should be associated with the claims file. 3. If SSA responds that they do not have the requested information, the AOJ should contact the Veteran and request that he provide information verifying his income for the years 2009 through and including April 2011. The Veteran should also be asked specifically to provide any evidence that that may substantiate his contentions regarding marginal employment (e.g., tax returns, SSA earnings statements). 4. Review the development actions taken on remand. Ensure that the SSA records request complies with the terms of the Board's remand, specifically the request made must be for the Veteran's earnings statements and not for his medical records. If the request does not comply with the terms of the Board's remand, another request must be made. 5. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues remaining on appeal. As part of its readjudication, the AOJ must consider whether the Veteran's pre-May 2, 2011, employment was of a marginal nature. If it is determined that the Veteran was able to engage in substantially gainful employment prior to May 2, 2011, set forth specific reasoning for such conclusion that considers the Court's interpretation of the meaning of "unable to secure and follow substantially gainful employment" as set forth in Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.