Citation Nr: 21005960 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-54 176 DATE: February 3, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 31, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for posttraumatic stress disorder (PTSD), effective December 16, 2010. Rice v. Shinseki, 22 Vet. App. 447 (2009). In September 2019, the Board issued a decision which, in relevant part, denied entitlement to a TDIU prior to January 31, 2017. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). A September 2020 order of the United States Court of Appeals for Veterans Claims (Court) implemented an August 2020 Joint Motion for Partial Remand (JMR), vacating and remanding in part the September 2019 Board decision. In the JMR, the parties agreed that in denying entitlement to a TDIU prior January 31, 2017, the Board erred when it failed to consider and discuss certain evidence that is potentially relevant to the nature and extent of the Veteran’s employment history during the relevant period. In finding entitlement to a TDIU began on January 31, 2017, the Board relied on the Veteran’s reports on his VA form 21-8940 and to his August 2016 VA examiner that the last time he worked full time was in January 2017. However, the parties noted several instances in the record prior to January 31, 2017 when the evidence reflected the Veteran’s reports that he was not working. In an August 2014 claim for unemployability, the Veteran stated that he was unable to work at “full capacity” for “the last couple of years” due to his service-connected disabilities. Likewise, a July 2014 VA psychology consult noted that the Veteran “recently retired from running a restaurant with his family.” Psychology notes dated from 2014 to 2016 included inconsistent indications about whether the Veteran was employed. Psychology notes dated in February 2015, May 2014, March 2015, and July 2015 reflected that the Veteran was not working, while psychology notes dated in February 2016, February 2014, November 2014, April 2015, and October 2015 indicated that the Veteran was employed or self-employed. Other records showed that the Veteran may have been marginally employed during the appeals period prior to January 31, 2017. An August 2013 VA psychology consult reflected that the Veteran was “not formally employed but works at his wife’s restaurant when needed (which she owns) to help her out.” An August 2016 VA PTSD exam reported that the “veteran is currently unemployed but stated that he runs errands for his wife at her restaurant.” An April 2015 letter from Dr. FG stated that the Veteran’s PTSD impaired his social environment and occupational situation and “[h]e has tried working full time employment but has been unsuccessful.” The record includes a VA form 21-8940 reflecting the Veteran’s reports that he last worked as a cook in January 2017; however, while the form requested that he list his employment and dates of employment for the prior five years, he did not indicate how long he remained in this position or provide any additional information on his employment history. The Board finds that additional information from the Veteran is necessary to properly determine his employment status for the appeals period prior to January 31, 2017 and in particular, for the years from 2013 through 2017 when the record shows inconsistencies in his employment status. The additional information should include his income during his periods of employment. The matters are REMANDED for the following action: Ask the Veteran to provide his employment history for the appeal period prior to January 31, 2017 (particularly from December 2010 to January 2017). Provide the Veteran with the following history and ask him to please clarify his employment status during the relevant time period:  A treatment note dated in July 2014 shows that the Veteran reported that he had recently retired from running a restaurant with his family. Treatment notes dated in February 2015, May 2014, March 2015, and July 2015 reflected that the Veteran was not working, while notes dated in February 2016, February 2014, November 2014, April 2015, and October 2015 indicated that the Veteran was employed or self-employed. (Continued on the next page)    August 2013 and August 2016 notes reflected the Veteran’s reports that he worked/ran errands at his wife’s restaurant when needed. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.