Citation Nr: 21010384
Decision Date: 02/24/21	Archive Date: 02/24/21

DOCKET NO. 18-25 557
DATE: February 24, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 

REASONS FOR REMAND

The Veteran served on active duty from July 1996 to November 1996.

This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously denied by the Board in November 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, pursuant to an August 2020 Joint Motion for Remand (JMR), the Court vacated the Board’s November 2019 decision and remanded the claims for action consistent with the terms of the parties’ JMR. The claim is now before the Board. 

The Veteran’s combined evaluation has been 80 percent for the entire period on appeal. He has been rated at 70 percent for his organic brain syndrome with traumatic headaches (to include unspecified anxiety disorder, also claimed as depressive disorder) since August 2013 and 20 percent for a seizure disorder from April 2009. The Veteran’s disability ratings meet the schedular requirements for consideration of TDIU. That being said, the Board must still evaluate whether the service-connected disabilities precluded him from securing and following substantially gainful employment during the appeal period. To this end, the Board finds that the evidence of record is not conclusive. While the Veteran worked at a grocery store, at least through 2018, more information is needed as to his earnings. Moreover, to date, the Veteran has not undergone a recent VA examination addressing the extent to which his service-connected disabilities affect his ability to secure and follow a substantially gainful occupation. His last examination addressing these matters is from February 2017, more than four years ago.

Accordingly, this case is REMANDED for the following action:

1. Request that the Veteran complete an updated VA Form 21-8940, detailing his recent employment and earnings.

2. Afford the Veteran a VA examination, with an examiner who has reviewed the claims file. The examiner is notified that the service-connected disabilities in this case include organic brain syndrome with traumatic headaches (to include unspecified anxiety disorder, also claimed as depressive disorder) and a seizure disorder. The examiner must provide commentary as to the effects of the service-connected disabilities in relation to the Veteran’s ability to secure and follow a substantially gainful occupation. All opinions must be supported by a rationale. 

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Hetman

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.