Citation Nr: 21015036 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-27 886 DATE: March 16, 2021 REMANDED Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to January 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was remanded in August 2016 and April 2018 for further development. In a July 2016 rating decision, the Veteran was granted a temporary total evaluation for treatment for a service-connected condition requiring convalescence effective January 14, 2016 and lasting until April 30, 2016. As such, the Board will not evaluate this period in the below discussion as the Veteran is in receipt of the maximum schedular for a single disability during this period, which renders entitlement to TDIU moot. Entitlement to a TDIU is remanded. While further delay in readjudication of the Veteran’s appeal is regrettable, the Board concludes that a remand is necessary at this time to ensure that VA fulfills its duty to assist the Veteran in developing his appeal. Initially, the Board notes that the appeal period for consideration for this issue is from March 30, 2012, to January 13, 2016, and from May 1, 2016, to the present. Crucially, the Veteran’s service-connected disabilities may be combined for the purpose of determining whether he meets the schedular criteria of 38 C.F.R. § 4.16 (a) because they all stem from the same in-service injury to the Veteran’s low back. Accordingly, the Veteran meets the criteria for a schedular TDIU from May 1, 2016, to December 6, 2016, only, and the remainder of the appeal period for consideration must be analyzed under 38 C.F.R. § 4.16 (b), pertaining to TDIU on an extraschedular basis. The Board observes that the Veteran has participated in VA’s Vocational Rehabilitation and Education (VR & E) program, and these records document that he has received training as a paralegal; however, he has chosen not to pursue an occupation in this profession for unclear reasons. Instead, these records reflect that the Veteran’s job status has been unstable throughout the entirety of the appeal period. The Veteran was first provided a VA Form 8940 in connection with his initial claim in October 2012, and the AOJ instructed him to complete such in order to provide complete occupational and educational histories – which are pertinent to the Veteran’s appeal. Despite this, he has not provided VA with this critical information, and the Board is unable to determine from the evidence of record whether the Veteran has participated in a substantially gainful occupation during the appeal period. In light of above, on remand, the AOJ must provide the Veteran with a VA Form 8940 for him to complete and submit in support of his appeal. The Veteran is encouraged to cooperate with the AOJ’s efforts to assist him in developing his appeal, as the duty to do so is not a one-way street. Further, the Veteran must provide the AOJ with financial records showing his annual earnings throughout the appeal period, as defining a substantially gainful occupation is based on such. Again, the Veteran is encouraged to cooperate with the AOJ in this endeavor. Finally, the Veteran’s appeal for the periods from March 30, 2012, to January 13, 2016, and from December 7, 2016, to the present, must be referred to the AOJ’s Director of Compensation Service for initial review of whether his service-connected disabilities precluded him from securing and/or maintaining a substantially gainful occupation during these periods. This is purely a procedural step made necessary by 38 C.F.R. § 4.16 (b); however, the advisory opinion must consider the totality of the evidence of record under the controlling laws. If “sedentary employment” is discussed, as the concept is often reflected in the Veteran’s VA examination reports, the term must be thoroughly defined. Withers v. Wilkie, 30 Vet. App. 139 (2018). The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran with another VA Form 8940 and instructions outlining how to complete and submit such. *The Veteran is encouraged to cooperate with the AOJ’s instructions in this matter. 2. The AOJ must contact the Veteran and ask that he verify his personal income March 30, 2012, to January 13, 2016, and from May 1, 2016, to the present, to include the submission of his Internal Revenue Service (IRS) W-2 Forms, tax returns and/or pay stubs, for this period. *The Veteran is encouraged to cooperate with the AOJ’s instructions in this matter. 3. After the completion of above, the AOJ must determine whether the Veteran's income from March 30, 2012, to January 13, 2016, and from May 1, 2016, is above or below the poverty threshold as per the standards of the U.S. Department of Commerce, Bureau of the Census. 4. Thereafter, the AOJ must refer the matter to the Undersecretary for Benefits or the Director of the Compensation Service for appropriate action as per 4.16(b), for any time period from March 30, 2012, to January 13, 2016, and from December 7, 2016, to the present, where the Veteran's income did not equate to a substantially gainful occupation under 38 C.F.R. § 4.16 (b). Any discussion of the Veteran's ability to engage in sedentary employment during the pertinent period should be consistent with the holding of Withers v. Wilkie, 30 Vet. App. 139 (2018). 5. Thereafter, the AOJ must readjudicate the Veteran’s appeal in light of any additional evidence added to the record. If the benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished with a copy of this readjudication and afforded the applicable opportunity to respond SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald