Citation Nr: 21014124 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-24 951 DATE: March 11, 2021 REMANDED Entitlement to an effective date prior to October 1, 2009 for a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1985 to January 1991. As the Board noted in its July 2020 remand, this matter has had a long and complex procedural history. The Veteran’s claim for TDIU was denied in a March 2010 Board of Veterans’ Appeals (Board) decision, which the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (the Court). The Court remanded the claim, in November 2011, for further development and full consideration by the Board of the Veteran’s arguments regarding TDIU in the period from 1991 to approximately 2002, after the Veteran’s discharge from service and prior to his employment with the Social Security Administration (SSA). Upon return of the appeal to the Board, the Board granted the Veteran’s claim for TDIU in a June 2012 decision, but noted it was precluded from assigning an effective date for a TDIU rating in the first instance and must instead refer the matter to the Agency of Original Jurisdiction (AOJ). 38U.S.C.§7105. In a subsequent July 2012 rating decision, the AOJ set the effective date for the TDIU rating as October 1, 2009. The Veteran appealed that decision, contending that the AOJ’s review in setting the effective date of TDIU was limited from 2009 to the present. He contends that TDIU is warranted effective the day after discharge from service in 1991, as shown in the Air Force assignment to the temporary disability retired list from 1991 to 1996 and in letters from private physician D.C.R. dated September 10, 1992 and from Dr. A.M.M. dated January 20, 2005. The Veteran was employed apparently starting in 2002, but he contends that it was against medical advice and necessary to support his family. Then, in the Board’s August 2018 remand, it requested specific evidentiary development, including identification and procurement of pertinent private treatment records in order to comply with the terms of the Court’s November 2011 Memorandum Decision. The appeal was subsequently returned to the Board and remanded again in July 2020 for identification and procurement of pertinent private treatment records. On multiple occasions since those remands, the AOJ has asked the Veteran to complete and return medical records release authorizations for, or to submit copies of, pertinent private treatment records. The Veteran has not submitted completed releases for or copies of any such records, nor has he otherwise advised VA of any other outstanding private treatment records in response to the AOJ’s attempts to identify and obtain such records. Instead, in an August 2020 VA Form 21-4138, the Veteran cited a private medical opinion that is already of record, stated that he was never treated by the physician that authored that opinion, and indicated that his relevant treatment was at VA medical centers (VAMCs), the records from which are already in the claims file. Also, to the extent that the Board’s July 2020 remand was intended to direct development for vocational rehabilitation records, the Board notes that e-mail messages associated with the claims file indicate that unfortunately, for some reason, no such records exist, and the record reflects that the Veteran was notified and has actual knowledge of the fact that those records could not be obtained. Thus, the Board finds that the AOJ has substantially complied with the directives of the Board’s August 2018 and July 2020 remands. See Stegall v. West,11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that no Stegall violation occurs when the examiner “substantially complied with the Board’s remand order”). 1. Entitlement to an effective date prior to October 1, 2009 for a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. Where the remand orders of the United States Court of Veterans Appeals or the Board of Veterans’ Appeals are not complied with, the Board itself errs in failing to ensure compliance. Stegall, 11 Vet. App. 268, 269. An important issue in this case is whether the forms of employment that the Veteran engaged in between 1991 and 2009 (apparently against medical advice) should be considered gainful or marginal. See November 2011 Memorandum Decision of the Court; January 2015 Memorandum Decision of the Court. As the Court mentioned in its November 2011 Memorandum Decision, “the record is generally bereft of evidence pertaining to that period [from his placement on the Temporary Disability Retired List (TDRL) in 1991 to the time he was able to obtain his job with the SSA],” and the Veteran contends that he “was homeless and without income [from 1991 until he completed his education].” The Court stated that “it would have been VA’s responsibility to evaluate ‘the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue [of employability].’ 38 C.F.R. § 416(b) (2011).” It also stated that “[i]f the evidence at that time would have met the requirements for TDIU, then VA would have had to reevaluate the appellant’s disability under 38 C.F.R. § 3343(c) after he became employed.” In that November 2011 Memorandum Decision, the Court also stated that “[t]he Board should develop medical evidence on remand as to what effect continued work as an SSA claims adjudicator would have had on the appellant’s conditions at all times during the pendency of his request for TDIU benefits.” The Board has not remanded this appeal for, and the AOJ has not completed, any such development yet. The Board finds that on remand, such an opinion should be obtained. The Board also notes that it is unclear, from the evidence in the claims file, what the Veteran’s exact dates of employment were, what his earnings were, and what workplace accommodations he was afforded for his disabilities by his employers between his 1991 discharge and the current 2009 effective date of his entitlement to TDIU (in other words, from January 10, 1991 to September 30, 2009). Thus, on remand, the Board finds that additional development should also be conducted in this regard. Specifically, the Veteran should be asked to submit a VA Form 21-4138 or other letter/statement indicating, for all employment held during that period, what his exact dates of employment and earnings were while employed by each of his employers during that period and what workplace accommodations they each afforded him. The Board notes that according to the record, the Veteran’s employers during that period included (but were not necessarily limited to) the State of Florida and/or the SSA. See, e.g., e-mail dated May 18, 2010. Additionally, the Board notes that the Veteran has submitted a January 2011 VA Form 21-4138 indicating that he submitted letters from the SSA and State of Florida about his inability to work. The Veteran should be asked to submit as evidence any copies in his possession of any documentation of his employers’ determinations that he was unable to work as a result of his service-connected disabilities during the period between his 1991 discharge and the current 2009 effective date of his entitlement to TDIU. Finally, to aid in determining what the Veteran’s exact dates of employment and earnings were while employed during the aforementioned period, and what workplace accommodations each employer afforded him, each such employer should be sent, and asked to complete, a VA Form 21-4192 or other appropriate form requesting that (or similar) information. The matters are REMANDED for the following action: 1. Ask the Veteran to submit a VA Form 21-4138 or other letter/statement indicating, for all employment held between January 10, 1991 and September 30, 2009, and in as much detail as possible, what his exact dates of employment and earnings were while employed by each of his employers during that period and what workplace accommodations they each afforded him. The Veteran should also be asked to submit as evidence any copies in his possession of any documentation of his employers’ determinations or opinions that he was unable to work as a result of his service-connected disabilities during the period between January 10, 1991 and September 30, 2009. 2. After the above development is completed and the Veteran’s response, if any, is obtained, send each employer that the Veteran worked for between January 10, 1991 and September 30, 2009 (including but not limited to the State of Florida and/or the SSA) a VA Form 21-4192 or other appropriate form in order to request details regarding his exact dates of employment, the amount of his earnings, and the nature of any workplace accommodations that he was given (and/or any other similar and appropriate information). 3. Obtain an addendum opinion from an appropriate clinician regarding the effect that continued work as an SSA claims adjudicator would have had on the Veteran’s service-connected lumbar spine disability during the period between about 1996 and September 30, 2009 and the effect it would have had on his service-connected incomplete erectile dysfunction during the period between February 7, 2005 and September 30, 2009. (Continued on the next page)   4. Obtain an addendum opinion from an appropriate clinician regarding the effect that continued work as an SSA claims adjudicator would have had on the Veteran’s service-connected depressive disorder during the period between February 7, 2005 and 2009. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.