Citation Nr: 21024676 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 12-03 333 DATE: April 23, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1983 to April 1987, and in the Marine Corps from August 1987 to November 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board first remanded this matter for further development in July 2016, and subsequently several other times (March 2018, September 2018 and December 2019, November 2020) because this matter was deemed intertwined with other issues (increased rating for right knee degenerative joint disease with lateral meniscus tear and increased rating for PTSD) on appeal. The Board’s denials of these other two issues were appealed by the Veteran to the U.S. Court of Appeals for Veteran’s Claims (Court), were remanded by the Court for further proceedings consistent with its decision, and are not currently before the Board. The Board notes that in a September 2011 rating decision, the RO granted a temporary total 100 percent rating due to convalescence under 38 C.F.R. § 4.30 from July 12, 2011, to September 30, 2011, for the Veteran’s service-connected right knee degenerative joint disease with lateral meniscus tear, with his 10 percent rating reinstituted effective October 1, 2011. As such, the issue of TDIU was not rendered moot during the period when the temporary total 100 percent rating was not in effect. Further, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. Bradley v. Peake, 22 Vet. App. 28, 293-94. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. During a January 2015 knees examination for his right knee increased rating claim, the Veteran reported that he was about to quit his job based on his right knee disability because he could no longer tolerate prolonged standing. Consequently, the RO deemed that TDIU was inferred and sent correspondence to the Veteran to provide employment information and so that he could file a formal TDIU claim. The Veteran’s claim was subsequently denied by the RO in February 2015 when it did not receive the requested information. Through the pendency of the Veteran’s appeal, he has been specifically requested by the RO to provide information concerning his occupational and educational histories, as such are significant points of the benefits he seeks. In his VA Form 21-8940, Application for IU, submitted in September 2016, the Veteran only provided dates of treatment and hospitalizations, but left his employment history blank. In subsequent correspondence by the RO, the Veteran was notified that he needed to provide information with regards to his employment history in order for his TDIU claim to be adjudicated on its merits, which to date, he has still not provided. Based on the Veteran’s reports contained in his medical records reflecting that he was still currently employed, the Veteran’s TDIU claim was denied on this basis by the RO in its May 2018 Supplemental Statement of a Case (SSOC). In response, the Veteran acknowledged that he was still working, and through his attorney, in August 2020 specifically reported a marginal employment status, on the basis that he works for a “sheltered workshop.” See, August 2020 Third Party Correspondence. As such, the focus of the appeal is now whether the Veteran’s employment during the appeal period meets the definition of a “sheltered environment,” which would equate to marginal employment rather than a substantially gainful occupation. Cantrell v. Shulkin, 28 Vet. App. 382, 387-88. In pertinent part, this determination must be made in consideration of whether the Veteran’s current or former employers provided the Veteran accommodations to account for the functional impairment stemming from his service-connected right knee disability and/or his PTSD disability. Unfortunately, the Board has been, and is, unable to address this critical matter due to Veteran’s nonresponse to VA’s request for information regarding his employers during the appeal period. As such, it would be improper for the Board to readjudicate the Veteran’s appeal with this critical point unaddressed; however, VA’s efforts to do so have been frustrated by the Veteran’s inactions. In light of above, the Board concludes that another remand is necessary in order to provide the Veteran with another opportunity to inform VA of his complete occupational history, to include the names, addresses, and contact information of the Veteran’s former employers and the dates of employment since February 18, 2011. This will allow VA to conduct development necessary to substantiate whether or not such was a “sheltered environment,” to include contacting the Veteran’s current or former employers via a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Given these facts, the Veteran is encouraged to fully cooperate with VA’s requests in an effort to substantiate his appeal, as VA’s duty to assist him in doing so is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. The Agency of Jurisdiction (AOJ) must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim/appeal for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *In connection with the above, the Veteran is encouraged to provide VA with names, addresses, and contact information of his former employers and the dates of employment since February 18, 2011. The Veteran is hereby informed that he has a duty to cooperate in the development of his claim, and failure to do so without good cause may result in the denial of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 C.F.R. § 3.655. 2. The AOJ must contact any of the Veteran’s employers from February 2011 listed on the submitted VA Form 8940 and request that they complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 3. The employer(s) must also be requested to outline an accomodation(s) that the Veteran was provided in connection with the functional impairment associated with his service-connected right knee disability and/or his service-connected PTSD disability. 4. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran’s assistance regarding the latter. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.