Citation Nr: 21076773 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-31 568 DATE: December 27, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, prior to January 24, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1980 to September 1983. The issues are on appeal from a May 2018 rating decision. The issue was previously before the Board of Veterans' Appeals (Board) in January 2018, August 2018, and August 2021, when it was remanded for additional adjudication. Most recently, the case was remanded for referral to the Director of Compensation and Pension Service for consideration of entitlement to an extraschedular TDIU. TDIU has been granted from January 24, 2019, so the Board will only consider the period prior to January 24, 2019. Service connection was evaluated at 20 percent from November 15, 2011 for degenerative arthritis of the lumbar spine, left lower radiculopathy evaluated at 10 percent from November 15, 2011, degenerative joint disease flexion of left knee pain evaluated at 10 percent from November 15, 2011, multilevel degenerative osteoarthritic left foot evaluated at 10 percent from April 25, 2012, and degenerative joint disease extension of left knee evaluated at 10 percent from June 20, 2014. He had a combined disability evaluation of 40 percent, effective November 15, 2011, 50 percent from June 20, 2014. Therefore, for the period before the Board, prior to January 24, 2019, the Veteran's service-connected disabilities do not meet the criteria for the assignment of a TDIU on a schedular basis. See 38 C.F.R. § 4.16. The Board finds that additional development is required in order to clarify the Veteran's work history and whether employment was marginal in nature. The Board's review shows that the record is ambiguous regarding the Veteran's work status and earnings. The Veteran originally requested an unemployability determination in a February 2012 Statement in Support of the Claim where he stated he was "not able to work" and his "conditions are related to [his] paratrooper dut[ies]." The Veteran formally requested an unemployability determination in a VA Form 21-8940 received in April 2019. On the Veteran's VA Form 21-8940, he stated that he was employed by the Atlantic City Housing Authority as a Journeyman from January 2003 to December 2006 and as a cashier at Dunkin Donuts from January 2007 to December 2007 following active duty service. The Veteran reported additional employment at medical appointments and VA examinations throughout the period on appeal. He indicated that after his military service, he lived at a rescue mission in Atlantic City until he found a job as a security guard in a casino. He then was employed as a cook in another casino for two years. The Veteran indicated that he worked a number of jobs as a cook in various industries, including a hotel. He received Section 8 and welfare, and the housing authority sent him to carpentry school, which he attended for four years. He dropped out before completing the carpentry program around 2004. In 2007, medical notes indicate that the Veteran was participating in the Compensated Work Therapy where he worked outdoors. While he was offered a change in assignment due to pain in his foot, the Veteran declined because he loves to work outdoors. Medical treatment notes also indicate the Veteran was employed as an ambassador in a VA facility in February 2011. In December 2011, the Veteran indicated that he was employed as a carpenter until 6 years ago. In January 2012, the Veteran stated that a work stressor was interfering with his overall function. He shared with his physician that at his job he feels angry and gets anxious when a co-worker "keeps playing boss." The medical treatment note does not indicate where the Veteran was employed, how many hours per week he was working, or what his position entailed. Then, at a subsequent June 2012 VA examination, the Veteran shared that he stopped working 6 years ago. At a mental health appointment in February 2013, the Veteran's psychiatrist noted that the Veteran was currently on "ITR-Laundry, 5 days per week, 6 hours per day." The clinician opined that the Veteran should volunteer in the community or VA rather than working because his reliability and productivity have eliminated him from employment opportunities, he has an inability to adapt to work-like settings, and he has limited walking, standing, and lifting abilities. In October 2013, a medical note indicates that the Veteran worked in a compensated work therapy program but did not provide any further details. In July 2014, at a diabetes appointment the medical notes indicate that the Veteran was presently "employed full time" as a "security officer." In August 2014, the Veteran reported that he is "disabled" and "collect[s] SSD" and was last employed 10 years ago. The record indicates that the Veteran receives disability payments from the Social Security Administration (SSA). VA has the duty to acquire a copy of the SSA records, including the decision granting SSA benefits and the supporting medical documentation, if they are relevant. SSA records are relevant if either (1) there is an SSA decision pertaining to a medical condition related to the one for which the Veteran is seeking service connection or (2) there are specific allegations "giv[ing] rise to a reasonable belief" that the SSA records may pertain to the claimed disability. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Baker v. West, 11 Vet. App. 163 (1998). The Board finds that VA has been provided factual notice of potentially relevant SSA records; however, there are no Social Security applications, decisions, or medical records associated with an SSA claim in the record. As such, any records from Social Security should be obtained as they may contain evidence necessary for the Veteran to substantiate his claims for entitlement to TDIU. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). A determination regarding whether a Veteran is entitled to TDIU involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran's ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In this case, the Board finds that the record is ambiguous regarding the economic component, particularly whether any part-time work produced more than marginal income. Given the ambiguity in the record regarding the Veteran's work status and earnings along with the outstanding potentially relevant SSA records, remand is required to clarify those matters. The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain from SSA all records pertaining to the Veteran's claim for disability benefits, if any, including copies of all medical records considered in deciding any claim. 3. Upon completion of the above directives, complete any other necessary development after review of any additionally received records, to include additional VA examinations if warranted. (Continued on the next page) 4. Finally, readjudicate the appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and return the case to the Board. (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.