Citation Nr: 21075768 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-11 262 DATE: December 21, 2021 REMANDED A total disability rating based on individual unemployability (TDIU) prior to August 20, 2014. Entitlement to Dependents Educational Assistance (DEA) benefits under Title 38, U.S.C. Chapter 35 prior to August 20, 2014. REASONS FOR REMAND The Veteran served on active duty from August 1980 to September 1995. The case is on appeal from a May 2018 rating decision. In September 2020, the Board denied the issues of entitlement to a TDIU and DEA benefits for the period prior to August 20, 2014, and higher rating in excess of 40 percent for service-connected right lower extremity radiculopathy prior to July 30, 2008 and left lower extremity radiculopathy prior to June 18, 2014. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court) but only with respect to the issues on entitlement to a TDIU and DEA benefits prior to August 20, 2014. As such, the increase rating claims for bilateral lower extremities radiculopathy are no longer before the Board. In an August 2021 Order, on the basis of an August 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's decision as to the adjudicated TDIU and DEA claims for further development and readjudication. 1. A TDIU prior to August 20, 2014. 2. DEA benefits prior to August 20, 2014. The August 2021 JMR states that the Board erred when it failed to set forth an adequate statement of reasons or bases for its finding that the Veteran did not submit a timely notice of disagreement (NOD) following a July 2013 rating decision which severed benefits of special monthly compensation for the loss of use one foot, and reduced his disability rating for service-connected right lower extremity radiculopathy from 40 percent to 10 percent effective November 1, 2013, and scar from a 10 percent rating to a noncompensable rating. In that regard, the parties agreed that the Board must further address additional medical evidence submitted within one year from the July 2013 rating decision. In a subsequent November 2021 brief, the Veteran's attorney indicated that, while the Veteran expressly indicated in his October 2015 TDIU claim that he last worked full-time on August 19, 2014, he also indicated that he only was able to work "a few hours" per week because of his back disability. The Veteran's attorney argues that the Board should evaluate whether a TDIU prior to August 20, 2014 is warranted based upon a protected environment since the Veteran was self employed and was able to only work 40 percent of the time. Lastly, the representative attorney indicates that the Board should discuss whether a TDIU is warranted from June 2014 (date of a TDIU application), or one year prior to the date of claim. In his October 2015 TDIU claim, the Veteran expressly indicated that it was on August 19, 2014 that he became too disabled to work. He also asserted that he lost 60 percent of work time due to his back condition. The Veteran also listed his highest monthly income as $2,500.00 per month. Nonetheless, the Veteran stated that for the past 12 months (i.e., October 2014 to October 2015) he had earned $6,000 which equals approximately $500.00 per month, despite Social Security Administration (SSA) records submitted by the Veteran suggest otherwise. Notwithstanding the above, given the representative attorney's arguments suggesting that that the Veteran was self-employed and that his income was less than that self-reported by the Veteran in his TDIU application, his argument with respect to the amount of time lost from work, and because there is a question as to whether consideration of a TDIU on the basis of a protected environment is warranted, the Board finds further development is warranted prior to adjudicating the claims on the merits in compliance with the August 2021 JMR. Accordingly, the Board finds that a remand is warranted for additional development with respect to the Veteran's employment history, to include whether he was employed or self-employed, how much time he lost from work, and to obtain any evidence to clarify his total income and sources for the alleged period. The matters are REMANDED for the following action: Request from the Veteran, and assist in obtaining, evidence in support of his employment history prior to August 20, 2014, which may include, but is not limited to, completion of a VA Form 21-4192 (Request for Employment Information), any evidence in support of time lost from work prior to that date, any evidence to help clarify his total income and sources, and any outstanding SSI/SSA Recorded Earnings records for the period in question. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.