Citation Nr: 21040994 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-58 769 DATE: July 7, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from October 1972 to July 1976. This claim is returned to the Board of Veterans' Appeals (Board) after a remand to the Department of Veterans Affairs (VA) Regional office (RO) for further development towards consideration of an extraschedular TDIU in January 2019. At the time of the Board's remand, the Veteran's combined evaluation was 60 percent, with single disability evaluations of 30 percent each for ulcerative colitis and fecal leakage. Thus, the Veteran did not meet the criteria for consideration of a schedular TDIU. Beginning August 6, 2020, the Veteran was awarded an increased disability rating of 40 percent for prostate hypertrophy with voiding dysfunction resulting in a combined disability evaluation of 70 percent. Accordingly, the Veteran is entitled to schedular consideration of a TDIU as of that date. The Board observes there are significant omissions in the development specified in the Board's remand directives. Thus, the issue of entitlement to a TDIU is again remanded. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The claims file contains a functional statement prepared by the Veteran for Social Security disability in December 2009. The record in this case shows that the Veteran is unemployed, which he contends is a result of his service-connected ulcerative colitis with fecal leakage. However, the Veteran has also expressed an interest in working in a park service or other outdoor employment, which indicates that he may not be unemployable. This matter was remanded for a statement from the Veteran on the impact of his service-connected disabilities on his ability to secure and maintain substantially gainful employment with respect to his daily activities and ability to function and for information on his work history and educational background. Consideration was to be given by the RO for a medical opinion on the Veteran's ability to function in a work environment as a result of his service-connected disabilities and the medications he takes to treat his symptoms. These requested items nor other documentation from which this information could be gleaned have been added to electronic claims file. The Board observes that the Veteran provided a comprehensive statement of his functional activities and limitations on a Social Security disability form in December 2009. However, the Board requires a current statement of this nature which addresses only limitations presented by service-connected disabilities. Also, in September 2019 the RO forwarded a letter to the Veteran requesting that he complete a VA Form 21-8940: Veterans Application for Increased Compensation Based on Unemployability which has not been received by the VA. Accordingly, in order to render a fully informed decision, the Board is remanding the claim for receipt of a statement from the Veteran regarding his daily activities and any limitations presented by his service-connected disabilities as well as completion of VA Form 21-8940. The matter is REMANDED for the following action: 1. Ask the Veteran to submit a statement regarding the impact of his service-connected disabilities on his ability to secure and maintain substantially gainful employment. He should be asked to describe his daily activities and the impact of his service-connected disabilities only on any limitations of his ability to function. 2. The Veteran should be asked to complete and return a VA Form 21-8940 detailing his educational background and work history. 3. After completing the above development, it is left to the discretion of the RO as to whether obtaining a medical opinion on the Veteran's ability to function in a work environment as a result of his service-connected disabilities and the medications he takes to treat his symptoms would provide needed clarification. Specifically, any such medical opinion would address with specificity his ability to drive and operate machinery, to concentrate, to maintain a consistent work (Continued on the next page) pace, and to consistently attend work on a daily basis, particularly in employment in an outdoor setting. 4. After completion of the above steps, the claim should be readjudicated. If the benefit identified is not awarded to the Veteran, issue a Supplemental Statement of the Case and after a period return the claim to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.