Citation Nr: 21025037 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-28 757 DATE: April 27, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 5, 2013.   REASONS FOR REMAND The Veteran served on active duty from December 1985 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. In June 2015, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. She was advised in a February 2021 letter that the presiding Veterans Law Judge is no longer available to issue a decision in her case and, therefore, she had the opportunity to elect to testify at another hearing. She was informed that if she did not respond within 30 days from the date of the letter, the Board would assume she did not want another hearing and proceed accordingly. She did not respond to the Board’s letter. The Board will therefore proceed under the assumption that she does not wish to testify at another hearing. In August 2016, the case was remanded for additional development. Subsequently, in a March 2020 decision the Board granted a TDIU effective August 5, 2013, and remanded the issue of TDIU prior to such date on an extraschedular basis. The case now returns for further review. The Board’s March 2020 decision also addressed other issues, which have since been remanded by the Court of Appeals for Veterans Claims (Court). Those issues are not currently before the Board as they are pending a due process, evidence-submission window. See Clark v. O’Rourke, 30 Vet. App. 92, 97 (2018); 3/8/2021 BVA notice letter (allowing 90 days to submit additional evidence or argument). Entitlement to a TDIU prior to August 5, 2013, is remanded. This case is remanded (1) to obtain further information regarding the Veteran’s employment history, and (2) because intertwined claims remain pending. First, with regard to her employment history, there are inconsistencies regarding the Veteran’s past work. In her April 2015 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran stated she had last worked full-time in November 2006 and become too disabled to work in June 2011. She wrote “N/A” across the section asking her to identify her employment history during the past five years. However, in her previously submitted July 2014 VA Form 21-8940, the Veteran reported having last worked full time as a massage therapist in September 2010. This would have been within the past five years covered by the April 2015 application form. Further, an October 2013 Social Security Administration (SSA) assessment reflects the Veteran report that she worked as a claims administrator from January 1997 to November 2006, a telephone representative from October 2008 to April 2009, and as a part-time sales associate from December 2010 through “present.” Again here, this indicates an employment history where she reported to VA in April 2015 that she had none. Additionally, it is unclear as to when the Veteran stopped working as a massage therapist. VA Orthopedic Surgery records from March and June 2013 list her occupation as massage therapist and go on to state that such job was aggravating her back. The Board previously found in its grant of TDIU from August 5, 2013, that the Veteran last worked full-time in 2006 with part-time work thereafter. Overall, the evidence prior to August 5, 2013, is inconsistent as to the nature and extent of her employment history. Because a TDIU may generally not be awarded during any time period in which the Veteran’s earned income met or exceeded the poverty threshold (except in some cases of employment in a protected work shop or a family business), it is necessary to obtain accurate information regarding her employment history and earnings before proceeding to the next question concerning whether the Veteran’s service-connected disabilities impacted her employability. This is because the question is not whether the Veteran was working and earning income at more than the marginal level. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The question is whether she was capable of performing the physical and mental acts required by employment. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The accurate information regarding the Veteran’s work history bears on this question. Remand is needed for this development. Second, remand is needed as there are intertwined claims that remained pending. The Board’s March 2020 decision granted a TDIU from August 5, 2013, and remanded the claim prior to that date. The Board also denied entitlement to initial ratings in excess of 10 percent each for left and right lower extremity radiculopathy. The Board did not address entitlement to special monthly compensation (SMC) as part of its grant of a total disability rating based on individual unemployability (TDIU) from August 5, 2013. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties before the Court agreed that remand of the radiculopathy claims was needed because the Board only discussed April 2014 and June 2017 VA examination reports, but no other evidence relevant to establishing the current severity of the disabilities, such as evidence of problems with gait or mobility. The parties to the JMPR also found that the Board erred because it failed to address the Veteran’s potential entitlement to special monthly compensation under 38 U.S.C. § 1114(s) when it granted entitlement to TDIU from August 5, 2013. The parties agreed that the Board must address whether any of Veteran’s disabilities alone would entitle her to TDIU, such that she would be entitled to SMC. The two issues remanded by the Court are not currently within the scope of the instant decision. However, by the terms of the JMPR, the TDIU issue is inextricably intertwined with the remanded issues. As such, it would be premature to adjudicate the TDIU issue. The matters are REMANDED for the following action: 1. Contact the Veteran and ask that she report all income from any source during the years she is claiming a TDIU prior to August 5, 2013. This should include asking the Veteran to submit copies of her tax returns or other information verifying her income during the relevant period. The RO should follow-up by taking any further action needed to verify the Veteran’s earned income during the years claimed (prior to August 2013), such as contacting the Internal Revenue Service. 2. After completing all action set forth in paragraph 1, undertake any further action needed as a consequence of that development. Then, if the full benefit sought has not been granted, issue a SSOC and return the case to the Board. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.