Citation Nr: 21010748 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-30 910A DATE: February 25, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1996 to March 1997. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board issued a decision denying the Veteran’s appeal in September 2019. The Veteran appealed the Board’s decision to the Court of Appeals for Veteran’s Claims (CAVC). In October 2020, CAVC granted the Joint Motion for Remand filed by the Secretary of the VA and the Veteran (the Parties) moving the Court for an order vacating the Board’s decision and remanding it for further adjudication. In the Joint Motion for Remand (JMR) the Parties agreed that vacatur and remand of the Board decision on appeal was warranted because the Board erred when it did not provide an adequate statement of reasons or bases for its conclusions. Specifically, the Board found that the Veteran had steady employment since at least January 2014; however, the Board failed to discuss evidence in the records that the Veteran was terminated from his position in June 2014. In addition, the JMR noted that vocational rehabilitation records reflected that the Veteran’s employment was part-time with net earnings of $600 per month. In this circumstance, the Board failed to address whether the Veteran’s employment constituted marginal employment which is not substantially gainful employment. On remand the Parties agreed that the Board shall discuss whether the Veteran is precluded from securing or following a substantially gainful occupation by reason of his service-connected disability, including consideration of whether any employment constitutes marginal employment. Entitlement to a total disability individual unemployment The Veteran contends that his service-connected lumbar stenosis disability precludes him from obtaining or maintaining substantially gainful employment. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Factors to be considered are the veteran's education, employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran works and without regard to the Veteran's earned annual income." Individual unemployability must be determined without regard to any nonservice-connected disabilities. 38 C.F.R. § 3.341(a); see also 38 C.F.R. § 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). It is important to note that the fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of his service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities and the Veteran’s employment and educational background. 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. The Board notes that the sole service-connected disability considered for purposes of evaluating the Veteran for a TDIU is his lumbar stenosis and residuals of lumbar disc surgery. Other diagnoses including a disability of the feet, sleep apnea and depression are not for consideration. The Board observes that the Veteran underwent lumbar discectomy in November 2012. In February 2014 the Veteran underwent a thoracolumbar spine disability evaluation in which the examiner confirmed the Veteran’s range of motion, radiologic evidence of degenerative arthritis of the spine and the absence of lower extremity radiculopathy. The examiner concluded that the Veteran’s lumbar spine condition did not impact his ability to work; however, the examiner elaborated stating that based upon his range of motion examination pain may moderately limit functional ability of the back during flare-ups or when the back is used repeatedly over a period time; additional limitations may include decreased ability to lift and carry, push and pull heavy objects greater than 15 pounds. In March 2014, the Veteran acknowledged to his VA provider that his pain was greatly reduced after his back surgery but that he continues to experience physical limitations that prohibit him from working certain types of jobs. The record also reflects that the Veteran attained an undergraduate degree in business management in May 2009. Given that the status of the Veteran’s lumbar spine disability has not been evaluated since February 2014, and the Veteran has not undergone a VA examination for a TDIU, the Board finds that additional development is required to afford the Veteran every consideration. While on remand, updated VA treatment records should also be obtained and associated with the evidentiary record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and with their assistance, determine whether there are any outstanding records of pertinent medical treatment from VA, private health care providers, or vocational rehabilitation specialists that have treated or consulted with the Veteran for his service-connected disabilities. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Provide the Veteran with notice of the laws and regulations governing a TDIU in accordance with 38 U.S.C. § 5103A (2012). 3. Request that the Veteran complete and submit an updated VA Form 21-8940; Veteran’s Application for Increased Compensation Based on Unemployability. 4. Thereafter, schedule the Veteran for a VA thoracolumbar spine examination with a qualified examiner to determine the current nature and severity of the disability. All indicated tests and studies should be conducted and documented. 5. Arrange for a TDIU examination with a vocational rehabilitation specialist or other qualified examiner to address, without regard to nonservice-connected disabilities, the impact of the Veteran’s service-connected disability on his ability to secure or follow a substantially gainful occupation. The examiner is asked to specifically identify and address how the symptoms and functional effects of the Veteran's service-connected disabilities impact his ability to work. (Continued on the next page)   The examiner should consider all previous VA examinations, vocational rehabilitation records and this remand. A complete and comprehensive rationale for all opinions expressed and conclusions reached must be provided. The examiner should note that the Veteran is competent to express his lay observations. If the examiner disregards or discounts any of the Veteran’s lay statements, an explanation should be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond before returning the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.