Citation Nr: 21015218 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 11-17 464 DATE: March 16, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1969 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In a January 2017 decision, the Board denied the issue above. Subsequently, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in November 2018, the Court vacated the issue and remanded the matter to the Board. In January 2017 and July 2019, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU is remanded. In its November 2018 Memorandum Decision, the Court noted that the Board must clarify its definition of “sedentary work,” and discuss whether the Veteran’s functional limitations of the his range of motion, to include his statements that he could stand and walk only for 1.5 to 2 hours at a time before he needed a 15 to 30 minute rest, that he had difficulty stooping to put on socks and shoes and that his reports of flares of back pain, which confined him to bed for 3 to 4 days every 5 to 6 weeks, could exclude him from such work. Further, the Court noted that a remand was necessary because the evidence reasonably raised the issue of whether the Veteran was capable of more than marginal employment. The Board notes that subsequent to the Court remand, the Board remanded the Veteran’s claim in July 2019 for new examinations and opinions regarding the Veteran’s service-connected low back, right hip and scars of the right hip disabilities. The examination reports and opinions have been associated with the Veteran’s claims file. In a June 2020 Board remand, the Veteran’s claim was referred to the VA’s Director, Compensation Service, in error, for consideration of an extraschedular rating. The requested report has been associated with the Veteran’s claims file. The Veteran is service connected for a low back disability, evaluated as 40 percent disabling; for a right hip disability, evaluated as 30 percent disabling; and for scars of the right hip, evaluated as 10 percent disabling. The combined evaluation is 60 percent. The Veteran’s disabilities are found to have risen from a single in-service motor vehicle accident. Therefore, when combined, the Veteran meets the numeric requirements for consideration for schedular TDIU under 38 C.F.R. § 4.16(a). In order to comply with the Court’s remand directives, the Board must further remand the matter for additional development of the record. The Board notes that the record is sparse with regard to the Veteran’s employment history, income or wages, and his training or skills. The Veteran submitted his claim in April 2006. A VA Form 21-8940 dated in April 2006 and one dated in December 2009 are of record. The April 2006 form reflects that the Veteran was a self-employed property manager, working less than 20 hours a week with a net income of $1000 and a total earned income of $10,000 in the last year. The December 2009 form reflects that the Veteran had last worked full time 1986. He had worked for a railroad company from 1976 to 1986 and was self-employed from 1986 to present, doing carpentry work. He noted making $0 in last year. A July 2010 examination report indicates that the Veteran owned 2 apartment houses and that he did the maintenance for the properties. In an August 2014 statement, the Veteran noted that he was a self-employed transporter for special education services for a school department. He noted that his pay varied, as he did not work when the children were not attending school. Based on the record, it is unclear what positions and jobs, if any, the Veteran has held and when, in several years, and here is no information regarding whether any employment could be considered “marginal” or “substantially gainful.” As such, the Board is unable to conduct a meaningful analysis of his ability to secure or follow substantially gainful employment without information on whether and when was employed, whether his employment was marginal or protected, and thus it is difficult to determine the time periods during which the Veteran would qualify for a TDIU. Therefore, on remand, clarification should be requested from the Veteran on his work history, and regarding the times during which he was not employed, or engaged in employment that was not substantially gainful. Further, the Board finds that a vocational specialist, similar occupational specialist, or appropriate VA musculoskeletal examiner should also specifically discuss the impact the Veteran’s service-connected disabilities have on the Veteran’s ability to secure and follow substantially gainful employment, to include sedentary work, without regard to age or nonservice-connected conditions, and with educational and vocational background considered. The matters are REMANDED for the following action: 1. Request an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), including all employment and earnings information, from the Veteran. Complete any development necessary regarding the claim of entitlement to a TDIU based on any responses provided by the Veteran or evidence submitted by the Veteran or his representative. 2. Next, forward the claims file to a vocational specialist, similar occupational specialist, or appropriate VA musculoskeletal examiner. The need for new examinations and/or an interview is left to the discretion of the examiner (particularly in view of COVID-19). Following a review of the entire record, to include the Veteran’s lay statements noted above regarding his limitations due to his service-connected disabilities, the examiner is asked to identify the specific workplace limitations caused by the service-connected low back, right hip, and scars of the right hip disabilities which affect his ability to secure and follow substantially gainful employment. The examiner must also describe the specific effects that the Veteran’s service-connected disabilities have on his ability to perform sedentary employment. To the extent possible, the time frame of this impairment should be discussed. The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.