Citation Nr: 21076096 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-17 135 DATE: December 22, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1983 to November 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. Then, in August 2021 the Board remanded the issues of service connection for headaches for the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination for his headache disability. Additionally, it remanded the issue of a TDIU as inextricably intertwined with the newly granted claim for an acquired psychiatric disorder and the initial rating to be assigned. After an October 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the AOJ afforded the Veteran with a VA examination for his headache disabilities and adjudicated the issue of a TDIU. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the October 2021 rating decision granted service connection for the Veteran's headache disability. As such, this matter is no longer on appeal due to the full grant of the service connection benefit sought and it will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). A TDIU. The Veteran seeks entitlement to a TDIU. See 2/23/2017 VA 21-8940. The record shows that the Veteran meets the percentage threshold for consideration of a TDIU per 38 C.F.R. § 4.16(a) since February 23, 2017. In detail, service connection is in effect for an acquired psychiatric disorder (70 percent from February 23, 2017); tinnitus (10 percent from September 29, 2020); facial scars (noncompensable from February 28, 1991); and migraine headaches (noncompensable from February 23, 2017). Since February 23, 2017, the Veteran's combined disability rating has been 70 percent or higher. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this case, the evidence of record, as reported by the Veteran, established that he has some college education and last worked full-time on August 1, 2012, as a security guard. See 2/23/2017 VA Form 21-8940. While the evidence of record shows that the Veteran has been unemployed since 2012, more recent evidence suggests that he is currently employed. Specifically, in VA treatment records from December 2014 through March 2017, the Veteran reported that he worked as an Uber driver and did work for a financial services company. See 5/23/2017 CAPRI, at pages 4, 5, and 27; see also 8/21/2017 CAPRI, at pages 1, 13. Additionally, more recent VA treatment records from June 2020 showed that the Veteran worked as a Lyft driver. See 10/06/2020 CAPRI, at page 11. Further, VA treatment records from September 2021 shows that the Veteran is formally working for VA. See 9/13/2021 CAPRI, at page 1. Moreover, during the September 2021 VA psychiatric examination, the Veteran reported that he just started work as a janitor. See 10/5/2021. Therefore, the Board finds that this matter must be remanded to obtain an updated VA Form 21-8940 to better understand the Veteran's current employment situation and earnings, to include whether there is marginal employment. This matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding records from appropriate repositories, to include record of disciplinary actions. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. Request that the Veteran complete an updated VA Form 21-8940 and inform him that it contains valuable information regarding his employment history/earnings and any updated education/skills/courses that would be useful in considering a TDIU. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.