Citation Nr: 21011717 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 11-03 102 DATE: March 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a low back disability prior to June 14, 2011 is remanded. Entitlement to a rating in excess of 20 percent for a low back disability from June 14, 2011 to April 15, 2018 is remanded. Entitlement to a rating in excess of 40 percent for a low back disability beginning April 15, 2018 and thereafter is remanded. Entitlement to total disability due to individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1983 to October 1986. The issues of entitlement to a rating in excess of 10 percent for a low back disability; entitlement to a rating in excess of 20 percent for a low back disability from June 14, 2011 to April 15, 2018 and entitlement to a rating in excess of 40 percent for a low back disability beginning April 15, 2018 and thereafter come before the Board of Veterans' Appeals (Board) on appeal from an August 2020 Joint Motion for Remand (JMR) from the Court of Appeals for Veterans Claims (CAVC). A December 2013 Board decision determined that the issue of entitlement to total disability due to individual unemployability (TDIU) was raised by the record as part of the claim for an increased rating. Rice v. Shinseki, 22 Veteran. App. 447 (2009). The December 2013 Board decision remanded the issue of entitlement to TDIU. The issue of TDIU was again remanded in August 2017 and October 2019 Board decisions. 1. Entitlement to a rating in excess of 10 percent for a low back disability prior to June 14, 2011 is remanded. 2. Entitlement to a rating in excess of 20 percent for a low back disability from June 14, 2011 to April 15, 2018 is remanded. 3. Entitlement to a rating in excess of 40 percent for a low back disability beginning April 15, 2018 and thereafter is remanded. The August 2020 Joint Motion for Remand notes that the April 2018 VA examination is inadequate because the examiner failed to provide a fully informed view on the additional increased symptoms and functional limitations that the Veteran experienced during flare-ups. Accordingly, remand is appropriate for a new VA examination. 4. Entitlement to total disability due to individual unemployability is remanded. The October 2019 Board decision remanded the Veteran’s claim for entitlement to total disability due to individual unemployability (TDIU). Remand directives instructed that the Veteran should be scheduled for a VA examination to determine the impact of the Veteran’s service-connected disabilities on his ability to obtain or maintain gainful employment. Remand directives further instructed that based upon the examination results and a review of the record, the examiner should provide comment concerning the impact of the Veteran’s service-connected disabilities on his ability to obtain and maintain gainful employment and comment on whether the Veteran’s service-connected disabilities alone prevent him from obtaining or maintaining gainful employment. If the Veteran is capable of employment, state what type and what accommodations would be needed due to his service-connected disabilities. The Veteran is currently service connected for depressive disorder, asthma, lumbar spine osteoporosis, radiculopathy of the bilateral lower extremities, hearing loss and ganglion cysts on the left wrist. While the record contains examinations for the Veteran’s back conditions, asthma and depression, the evidence of record since the October 2019 Board decision does not contain an opinion regarding the impact of the Veteran’s hearing loss and ganglion cyst on the Veteran’s ability to work. Moreover, the record does not contain an opinion on the combined impact of the Veteran’s service-connected disabilities on the Veteran’s ability to work. Remand is warranted for an additional opinion regarding the impact of the Veteran’s service-connected disabilities on his ability to work. Moreover, the Board notes that during the December 2019 VA examination the Veteran reported owning and working at a motorcycle shop for the past five years. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. However, the ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In this case, there is insufficient information in the record to determine whether the Veteran’s employment is marginal, or substantially gainful. As such, additional information must be requested to determine whether the Veteran is currently engaged in substantially gainful employment. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Have the Veteran complete an updated VA Form 21-8940, Application for Increased Compensation Based on Unemployability. If VA Form 21-8940 is not fully completed and returned by the Veteran, the question of abandonment of the TDIU issue may be adjudicated. 38 C.F.R. § 3.158. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of the Veteran’s service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for a VA examination to determine the impact of the Veteran’s service-connected disabilities on his ability to obtain or maintain gainful employment. Based upon the examination results and a review of the record, the examiner should provide comment concerning the impact of each of the Veteran’s service-connected disabilities on his ability to obtain and maintain gainful employment as well as the combined impact of all of the Veteran’s service connected disabilities on the Veteran’s ability to obtain and maintain substantial gainful employment; comment on whether the Veteran’s service-connected disabilities alone prevent him from obtaining or maintaining gainful employment. In rendering an opinion, the Veteran is to be deemed credible for the limited purposes of this examination. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish 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.