Citation Nr: 21026090 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-32 346 DATE: April 29, 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 April 2006 to February 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded this matter in June 2020. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends that he is unemployable as a result of his service-connected disabilities, to specifically include his left ankle disability and medication taken for such, traumatic brain injury, and posttraumatic stress disorder. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is presently in receipt of service connection for the following disabilities: PTSD to include TBI, rated as 70 percent disabling; posttraumatic headaches, rated as 30 percent disabling; lumbar strain, rated as 10 percent disabling; left knee strain, rated as 10 percent disabling; status post open reduction internal fixation left ankle and arthroscopic reconstruction of the deltoid ligament, with residual degenerative joint disease and scars; rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; burn scar, right lower extremity, rated as 10 percent disabling; burn scars, left lower extremity to include left foot, rated as 10 percent disabling; and pseudofolliculitis barbae, rated as noncompensable. The Veteran’s combined disability rating is 90 percent. Thus, the schedular numeric criteria required for a TDIU are met. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the U. S. Court of Appeals for Veterans Claims (the Court) defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." In the June 2020 Remand, the Board directed that additional VA examinations be provided to assess the current severity and functional effect of the Veteran’s service-connected disabilities and to provide the Veteran with an additional VA Form 21-8940 to update his employment and educational history. It remains unclear whether the Veteran has been employed during the relevant appeal period. The Veteran has made several inconsistent statements over the appeal period regarding his employment history. He has asserted that he last worked full time in August 2007, then he was employed by the US Marine Corps from April 2006 to February 2011 and then had been unemployed since leaving the military. A June 2020 VA treatment record, however, notes the Veteran’s report that he had worked as a barber for 25 years, but had not been working recently due to COVID-19 closures. While the Veteran did not return the requested VA Form 21-8940 with updated employment information, the Board finds that further development is warranted to obtain relevant federal records which may provide clarification as to the Veteran’s employment history. The Veteran should also be given an additional opportunity to submit the requested information. Additionally, the Board notes that while medical records and applications pertaining to the Veteran’s claim for Social Security Disability benefits have been received from the Social Security Administration (SSA), the decision itself is not of record. On remand, the AOJ should contact SSA to obtain a copy of any disability determination decisions for this Veteran, and to obtain information from SSA as to the Veteran’s annual earnings throughout the relevant appeal period. The matter is REMANDED for the following actions: 1. Contact the Veteran and request that he provide VA with clarification and information (including the name and address of any employer, type of work, hours worked per week, etc.) regarding his employment status and any jobs held at any time since. The Veteran should be given another opportunity to submit an updated VA Form 21-8940. The Veteran should be notified that it is his responsibility to provide the requested information, and that failure to respond may result in unfavorable findings by the Board and denial of his claim. 2. Contact SSA and request copies of the following: i. the Veteran’s annual earnings statements from 2011 to the present. If the SSA informs the AOJ that it cannot provide earnings statements to VA without the Veteran's approval, the AOJ should undertake to obtain any documentation needed from to the Veteran to enable to AOJ to obtain his SSA earnings statements; and, ii. a copy of any decision/determination issued by SSA concerning the Veteran’s entitlement to SSA disability benefits. The AOJ is reminded the Veteran's SSA medical records are already of record. These records need not be sought again as they do not contain the information required to adjudicate the Veteran's claim. Rather, the Board is seeking SSA’s written decision as to whether the Veteran is disabled, and actual wage and earnings data for the Veteran from 2011 to the present. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from federal facilities. All records and/or responses received should be associated with the claims file. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.