Citation Nr: 21041295 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-14 580A DATE: July 8, 2021 ORDER A disability rating in excess of 40 percent prior to March 17, 2014, and in excess of 20 percent since July 1, 2014, for a service-connected low back strain, is denied. Additional retroactive payment of $00.01 for service-connected disabilities from August 2011 to December 2018 is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 17, 2014, the Veteran's lumbar spine strain was not manifested by ankylosis (or the functional equivalent thereof), even when contemplating functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without incapacitating episodes due to intervertebral disc syndrome (IVDS), or associated objective neurological abnormalities other than other than the already separately rated radiculopathy. 2. Since July 1, 2014, the lumbar spine strain was manifested by forward flexion greater than 30 degrees, even when contemplating functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, incapacitating episodes due to IVDS, or associated objective neurological abnormalities other than other than the already separately rated radiculopathy. 3. The partial withholding of the Department of Veterans Affairs (VA) disability compensation from August 2011 to December 2013 due to the concurrent receipt of military retired pay (MRP) was proper. 4. Since January 2014, the Veteran has received full VA disability compensation and MRP. 5. The Veteran was due $111,940.46 in Concurrent Retirement and Disability Pay (CRDP) the period August 2011 to December 2018. 6. The Veteran was due $116,625.40 in VA compensation for the period August 2011 to December 2018. 7. The Veteran was due $17,979.51 in MRP for the period August 2011 to December 2018. 8. The Veteran was owed a total of $246,545.37 in MRP, VA disability, and CRDP for the period from August 2011 to December 2018. 9. The Veteran was paid $246,545.36 for the period August 2011 to December 2018. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent prior to March 17, 2014, and in excess of 20 percent since July 1, 2014, for the low back strain, are not met. 38 U.S.C. §§ 1155, 5107 (2020); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2020). 2. The criteria for additional retroactive payment of $00.01 for service-connected disabilities from August 2011 to December 2018 are met. 38 U.S.C. § 1414; 38 C.F.R. § 3.750. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to November 1996. These matters comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and February 2019 rating decisions issued by a VA Regional Office (RO). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2018, the Board remanded the claim for a higher rating for the lumbar spine strain for additional development and it now returns for further appellate review. During the pendency of the appeal, in a May 2020 rating decision, the RO increased the Veteran's rating for his back disability from January 20, 2012, to March 16, 2014, to 40 percent. As there remain higher ratings available and the Veteran has not indicated he is satisfied with this rating, this does not represent a full grant of benefits sought. Therefore, the Board has characterized the appeal to reflect this partial grant of benefits. In connection with his claim for an increased rating for his back disability, the Veteran raised an explicit claim for a TDIU rating, as evidence by an April 2012 clarification. The RO denied a TDIU rating in a July 2012 rating decision, and the Veteran did not submit a notice of disagreement to such decision. Nonetheless, the Board notes that a claim for a TDIU rating, when raised in connection with a claim for an increased rating, is not a separate claim for benefits but rather is part-and-parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Further, once the issue of a TDIU rating is raised as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Consequently, the Board finds entitlement to a TDIU rating is properly on appeal and has included it in the title page of this decision. 1. Entitlement to a disability rating in excess of 40 percent prior to March 17, 2014, and in excess of 20 percent since July 1, 2014, for a service-connected low back strain. The Veteran filed a claim for an increased rating for the back disability in January 2012. Thus, the period on appeal begins January 30, 2011 (calculating from the date VA received his claim, plus the one-year "look-back period"). See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran contends that his back disability is more severe than is reflected by his currently assigned disability ratings. Specifically, he contends that the pain from his back restricts his function severely, limiting his range of motion (ROM), and is not adequately contemplated by the current disability ratings. However, after a review of the record, the Board finds that his symptoms and severity are wholly contemplated by the currently assigned disability ratings, and increased ratings are not warranted. Legal Criteria Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. The Veteran's back disability is currently rated as 40 percent disabling prior to March 17, 2014, and as 20 percent disabling since July 1, 2014, pursuant DC 5237 for a lumbar strain, which is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5237-5242. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this diagnostic code, including the General Rating Formula, was not changed. For the period from March 17, 2014, to July 1, 2014, the veteran is in receipt of a temporary total rating for his back disability. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, DC 5237-5242. For back disabilities, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id at Note (2). The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined ROM of the thoracolumbar spine is 240 degrees. Id. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. Id. ROM measurements are to be rounded to the nearest five degrees. Id at Note (4). IVDS Formula Not Relevant As an initial matter, the Board notes that the record does not show, and the Veteran does not contend, that he ever had an incapacitating episode of IVDS that required physician prescribed bed rest, thus the IVDS Formula would not allow for a higher rating at any point pertinent to the appeal period. In this regard, the Veteran reported he had two incapacitating episodes in the prior twelve months at a May 2010 VA examination, notably prior to the period on appeal and not reported again. Further, the examiner noted at that time that the medical evidence of record did not support such statement. Further, the Board finds that a rating in excess of 40 percent prior to March 17, 2014, and as 20 percent since July 1, 2014, under the General Rating Formula is not warranted. In this regard, the record does not reflect, nor do the Veteran's statements show, that his ROM was limited to the extent necessary to warrant higher ratings at any point during the periods on appeal. Factual Background In connection with his claim, the Veteran first underwent a VA examination for his back disability during the period on appeal in June 2012. At that time, the examiner noted the Veteran had a diagnosis of degenerative joint disease in the low back, and the Veteran reported he had flare-ups, but explained them as constant pain of varying degrees especially with prolonged sitting in car rides. Upon evaluation, the Veteran had ROM with flexion limited to 60 degrees with pain starting at 60 degrees, and there was no change after repetitive use. Ha had localized tenderness, muscle spasms, and guarding, that did not result in abnormal gait or spinal contour. He did not have ankylosis, and his functional impairment resulted in no prolonged standing or sitting. Thereafter, the Veteran underwent another VA examination during the period on appeal in March 2014. At that time, the examiner noted both diagnoses of a lumbosacral strain and degenerative arthritis, and the Veteran did not endorse experiencing flare-ups, but likewise reported constant lower back pain which radiated into his lower extremities. Upon evaluation, the examiner noted the Veteran showed minimal to no effort, and he declined to do repetitive testing due to reported pain, thus he showed 3 degrees of forward flexion only, and 0 or 3 degrees of ROM for the other ranges. However, the examiner observed the Veteran outside the examination, and he showed much greater ROM and strength, without as much objective pain. Notably, the examiner witnessed the Veteran bend over in his chair to retrieve something from the ground, and to tie his shoes, with his chest contacting his thighs without any visible signs of discomfort. He bent laterally to retrieve something from the ground while sitting, showing at least 25 degrees of lateral flexion in each direction. He also sat up to a 90-degree angle from the floor smoothly and twisted and stood up easily and smoothly. Further, the examiner witnessed the Veteran extend backwards at least 20 degrees while repositioning. However, when asked to do such movements for the purposes of the compensation evaluation, the Veteran stated he was unable to perform these movements, despite the examiner having observed evidence to the contrary. The examiner also noted observing the Veteran (outside the examination context) to have brisk ambulation that was smooth and coordinated and without a limp. Consequently, based on these non-examination observations, the examiner estimated that the Veteran's actual ROM was having flexion limited to 80 degrees, without objective evidence of pain. Following the Board remand, the Veteran underwent a final VA examination during the period on appeal in July 2019, at which point the Veteran reported his lumbar strain resulted in a constant aching sensation with pain ranging from four to nine out of ten. He reported that he had a lumbar spine surgery in 2014, which alleviated his pain for about a year, and then it gradually returned. He reported that his back disability caused difficulty standing in one position more than 5 minutes, sitting in one position more than 5 minutes, bending the back, twisting the back, pushing, pulling, squatting, walking upstairs and down stairs, and lifting more than 10 pounds. He also reported he cannot run. He did not report experiencing flare-ups. The Veteran declined to participate in ROM testing because of the severity of his pain; however, the examiner was able to estimate that after repeated use over time, the Veteran would be limited to 75 degrees of forward flexion, based on his assertions. The examiner believed the Veteran's statements were credible in the moment, and thus the estimates were reliable. Analysis The medical treatment evidence of record generally supports the findings from the VA examinations. In this regard, the grant of a 40 percent rating in the May 2020 rating decision referenced above was based on a private functional capacity evaluation completed in March 2012. As relevant, the report found the Veteran had forward flexion limited to 30 degrees, and he was only capable of sedentary employment. In contrast however, contemporaneous evidence from VA in June 2010 and February 2012, and from the Coastal Spine and Pain Center in January 2012, showed the Veteran had full ROM of his spine. Based on the foregoing, and resolving all doubt in his favor, the Board finds that the Veteran's flexion was limited to at most 30 degrees during the period on appeal prior to march 17, 2014, without ankylosis which is required for a higher rating, even in consideration of additional limitation during flare-ups or following repeated use over time. Further, Since July 1, 2014, the Veteran's forward flexion has been limited to at most 75 degrees, again even in consideration of additional limitation during flare-ups or following repeated use over time. Consequently, the record does not show that the Veteran had ankylosis as required for a rating in excess of 40 percent, or limitation of forward flexion of 30 degrees or less, as required for a rating in excess of 20 percent, for the respective periods. In this regard, the Board finds the above VA examinations, which considered the Veteran's lay statements and completed clinical testing, highly probative. The Board notes that, while the June 2012 examination does not reflect passive ROM testing, or delineation of pain on weight-bearing and non-weightbearing, the evidence does not suggest, and the Veteran has not argued, that his ROM would be further limited in such capacity, and the Veteran reported constant pain, which implies pain on both weightbearing and non-weightbearing. Additionally, the July 2019 examination included ROM estimates as necessary as the Veteran declined to participate in clinical testing. Further, the medical evidence in treatment records support the examiners' clinical findings. Consequently, the record does not reflect that a rating in excess of 40 percent prior is warranted at any point during the entire appeal period, and a rating in excess of 20 percent is not warranted since July 1, 2014. In this regard, at no time did such disability result ankylosis, and at no point after July 1, 2014, did it result in forward flexion limited to 30 degrees or less; even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, at all examinations the Veteran's forward flexion was limited to 60 degrees at its worst. Moreover, at no point was he found to have ankylosis. Rather, his functional impairment manifests by painful and weakened movement, which was explicitly considered in his currently assigned ratings. The Board concludes that the criteria for a rating in excess of 40 percent prior to March 17, 2014, and in excess of 20 percent since July 1, 2014, have not been met under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5237. The Board has considered other potentially assignable ratings. The General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237-5242, Note (1). The Veteran has been awarded separate ratings for bilateral lower extremity radiculopathy; however, the Veteran does not contend, and the evidence does not show that his back disability results in any other objective neurologic abnormalities. Consequently, additional separate ratings for objective neurological abnormalities are not warranted. In light of the foregoing, the Board find the preponderance of the evidence is against assigning higher or separate ratings. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board concludes that the criteria for an initial rating in excess of 40 percent prior to March 17, 2014, and in excess of 20 percent since July 1, 2014, for a lumbar strain have not been met. 2. Entitlement to additional retroactive payment for service-connected disabilities from August 2011 to December 2018. The Veteran contends he is entitled to additional retroactive VA disability compensation for the period from August 2011 to December 2018. In this regard, in February 2019, he was notified that based on the information in his MRP files and VA records, he was entitled to a retroactive compensation payment of $24,550.70 for the period from August 1, 2011 through December 31, 2018. However, he contends instead, according to the January 2019 audit error worksheet (AEW), retroactive payment should have been $57,100.09, which was the total sum of the column "owed by VA." However, after a review of the record, the Board finds the withholding was proper, and the Veteran was paid all monies due to him; therefore, he is not entitled to an additional retroactive payment. Initially, the record reflects an AEW was completed in June 2020 after the Veteran initiated his appeal, applying an increased rating from February 2012 to March 2014. In a June 2020 correspondence, based on the June 2020 AEW, the RO found he was entitled to an additional retroactive payment of $37,084.35. This payment covers the additional amount the Veteran argued should have been included in his initial retroactive payment. Nonetheless, the Board will ensure that all monies due to the Veteran were paid. Further, the months of July 2011, and April to June 2014, were not included in either AEW of rating action, despite the Veteran being entitled to CRDP at those times. In this regard, December 2012 and May 2015 AEWs and corresponding payments, show respectively, that the Veteran received his full VA disability compensation and MRP during these months because he was rated at 100 percent. Thus, the Board will not include these months in its calculations. Importantly, there is a general prohibition on the concurrent payment of military retirement pay and VA disability compensation pay without a waiver. See 38 U.S.C. § 5304; see also 38 U.S.C. § 5305; 38 C.F.R. § 3.750. However, legislation has been enacted to allow certain Veterans to receive some measure of concurrent payments for both their retired military pay and their VA disability compensations. Relevant here is the CRDP program. The CRDP is a program that is available to military retirees who served a minimum of 20 years creditable service, including service in the National Guard and Reserves. CRDP restores some or all of the military retired pay that was deducted due to receipt of VA service-connected disability compensation. Retirees must be rated 50 percent or more disabled by VA. Retirees are not required to apply for this benefit; enrollment is automatic. After December 31, 2004, these individuals are generally eligible for full payment of their military retired pay and VA disability compensation, with some limitations. See 10 U.S.C. § 1414. Specifically, MRP was previously offset for disability compensation. Elimination of the offset of MRP for disability compensation was phased in over a 10-year period from 2005 to 2014. Id.; see also VA Adjudication Manual M21-1, Part III, Subpart v., Chapter 5, A.6 (M21-1, III.v.5.A.6). Procedures for calculating the amount of CRDP a veteran could receive during the phase in period are detailed in 10 U.S.C. § 1414 and M21-1, III.v.5.A.6. Essentially, VA will look at the amount of MRP waived each month (in lieu of VA pay), subtract out a preset restored rate of MRP, and then multiply by a restoration percentage. Relevant to the instant case, the offset for a 50 percent disability rating is $100, which applies from August 2011 to January 2012, and the offset for a 70 percent disability rating is $250, which applies from February 2012 to December 2013, when the phase-in period ended. The table below details the restoration percentages by year. Effective Year Percent of Restoration 2005 10.00% 2006 28.00% 2007 49.60% 2008 69.76% 2009 84.88% 2010 93.95% 2011 98.18% 2012 99.64% 2013 99.96% The total calculated in the above paragraph is added to the offset amount ($100 for a Veteran rated as 50 percent disabled and $250 for 70 percent disability rating) to determine the gross CRDP rate for that month. This is the amount the Veteran is entitled to in addition to his VA disability compensation and the amount of MRP that was not waived in lieu of VA disability compensation. In the instant case, as shown in the January 2019 and June 2020 AEWs, the Veteran did not waive the entire amount of VA disability compensation owed from his MRP. However, to calculate the greatest possible benefit to Veteran, and as done in the AEW, the Board will calculate the proper CRDP amounts as if the total amount possible was waived. Importantly, in doing so, pursuant to the statutory requirements in 10 U.S.C. § 1412 pertaining to calculating sums of payment for the Armed Forces, including CRDP, the amounts computed will be rounded down to the nearest $1 increment for each month (i.e. August 2011 total plus offset would be $920). Notwithstanding, the Veteran was entitled to his full MRP and VA disability compensation beginning in January 2014 with the end of the phase-in period; thus, the dates thereafter will not be included in the CRDP calculation. Date Range VA Award/MRP Waived Offset Percentage Restored Total Plus Offset No. of Months Total CRDP 08/11 to 10/11 $936 $100 98.18% $920.78 3 $2,760 11/11 $983.03 $100 98.18% $966.96 1 $966 12/11 $1,055 $100 98.18% $1,037 1 $1,037 01/12 $1,055 $100 99.64% $1,051 1 $1,051 02/12 to 11/12 $1,460* $250 99.64% $1,455.64 11 $16,005 12/12 $1,484* $250 99.64% $1,479.56 1 $1,479 01/13 to 11/13 $1,484* $250 99.96% $1,483.51 11 $16,313 12/13 $1,506* $250 99.96% $1,505.50 1 $1,505 TOTAL $41,116 *The Veteran's disability pay starting February 2012 was greater than his MRP, thus the maximum withholding amount for that period was the full amount of MRP which is reflected in the table above. VA pay was not waived entirely, and he received varying amounts of MRP from August 2011 to December 2018. See AEW. However, VA pay was withheld during this period, so the Veteran was not receiving full MRP and full VA disability benefits. The Board is not limiting this inquiry to the question of whether the Veteran was paid the proper amount of CRDP but, instead, is looking to see whether the Veteran received all funds due him for MRP, CRDP and VA disability benefits. It is noted that while a waiver is required to receive CRDP, VA will treat as a waiver an application for VA compensation filed by a veteran who is entitled to military retired pay. 38 C.F.R. § 3.750(c)(3). The MRP waived per month in the above table is equal to the VA pay the Veteran was entitled to during each period, or the full amount of MRP for the designated months when disability compensation was greater than MRP. From August 2011 to December 2018, the Veteran was entitled to VA pay totaling $116,625.40. During this period, the Veteran was also entitled to the amount of MRP above the amount of MRP that should have been waived for VA pay. This can be calculated by subtracting the amount in the "MRP waived" column in the CRDP table above from the Gross Retired Pay listed on the AEW. The Veteran's gross MRP award was $130,074. Subtracting out the VA waiver (including the reduced amounts from February 2012 to March 2014 equaling $4,530.91), the total MRP due for this period was $17,979.51. In addition to the CRDP calculated above for the offset period, the Veteran was entitled to CRDP of $70,824.46, for a total of $111,940.46. Therefore, the amount of combined MRP, CRDP and VA pay due during the period was $246,545.37. As far as payments, the AEW indicates the Veteran was paid MRP in the amount of $79,616.53. He was paid $54,988.38 in VA disability compensation. He was paid $61,637.01 in CRDP from VA. He was paid $50,305.40 in CRDP from MRP. In sum, the Veteran received $246,547.32 in total payment. Additionally, the June 2020 AEW acknowledged that the Defense Finance and Accounting Service overpaid the Veteran by $1.96, and subtracted such; thus, the total sum paid was $246,545.36. Initially, the Board finds that the withholding in VA disability compensation due to concurrent receipt of military retired pay was proper. In this regard, the Veteran did qualify for CRDP; however, the period from August 2011 to December 2013 was subject to the statutory offset for reimbursement as the Veteran did not qualify under an exception to the phase-in period for a 100 percent rated disability, expect for periods noted above not included in this decision. See 10 U.S.C. § 1414. Further, the Board has also re-calculated the entire MRP, CRDP, and VA disability compensation owed to the Veteran for the period on appeal; and, as described above, the Veteran is owed $00.01. Therefore, the Veteran is entitled to an additional retroactive payment of $00.01 for the period from August 2011 to December 2018. REASONS FOR REMAND 1. Entitlement to a TDIU rating. The Veteran contends that his service-connected disabilities, primarily his back disability, preclude obtaining and following substantially gainful employment, and thus a TDIU rating is warranted. After a review of the Board finds a remand is necessary to obtain information regarding the Veteran's employment history. Specifically, as noted above, the Veteran's private physician opined in March 2012 that he was only capable of performing duties of "sedentary" employment due to his back disability. Previously, the Veteran had worked as a delivery driver in publication distribution services from February 2002 to April 2010. He also reported he worked cleaning carpets concurrently. The Veteran was then unemployed until he enrolled in college courses in the summer of 2012. The record indicates separately that he was seeking a degree in sociology at the University of Florida-Gainesville, that he was seeking a Bachelor of Science in business at the University of Phoenix, North Florida Campus, and that he obtained a bachelor of science from the University of North Florida. An August 2016 rehabilitation closure statement noted he had completed a Bachelor of Science in business through the University of Phoenix in April 2016. Thereafter, he obtained employment as a courier with Publication Distribution Services in Jacksonville, FL. The Veteran reported at that time that the current position of employment was very compatible with his current disabilities, as he was able to sit/stand/move around as needed, and is able to tailor the amount of work that he does around his physical capacities for that day. Consequently, due to this flexibility in his workload and scheduling, he reported his service-connected disabilities were not adversely affected. However, after this document, there is insufficient information in the record regarding the Veteran's employment. Notably, the only reference to employment was a note in the July 2019 VA back examination wherein he stated he was self-employed as a janitor working two hours per week. Accordingly, additional development related to the Veteran's employment and educational background is necessary prior to adjudicating this claim. On remand, the AOJ should send the Veteran a VA form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to determine his work and education history. The AOJ should also solicit employment records from the Veteran's former employers throughout the appeal period to determine his employment history. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. Appropriate development should be undertaken based on the information provided by the Veteran, as needed. The Veteran is advised that failure to provide the Board with necessary information related to his employment history may be detrimental to his claim. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.