Citation Nr: 22011304 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 06-25 198 DATE: February 28, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran provided testimony at a Board hearing held before the undersigned Veterans Law Judge (VLJ) on the issue of entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD). A transcript of that hearing is included in the electronic claims file. In a September 2011 decision, the Board found the Veteran entitled to a 70 percent disability rating for his service-connected PTSD and also found that the issue of entitlement to a TDIU had not been raised by the record. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) the Board's conclusion that TDIU had not been raised. In an August 2012 Joint Motion for Remand (Joint Motion), the parties agreed that the Board failed to provide an adequate reasons or bases for why TDIU had not been raised and the Court then remanded the Veteran's claim to the Board consistent with the terms of the Joint Motion. In February 2013, the Board remanded the Veteran's claim to afford him a videoconference hearing. In May 2013, the Veteran provided testimony at a Board videoconference hearing before the undersigned VLJ. A transcript of that hearing is included in the electronic claims file. The Board then remanded this matter for additional development, in February 2017. In a July 2018 decision, the Board denied entitlement to a TDIU. The Veteran appealed the Board's July 2018 decision to the Court. In a June 2019 Joint Motion, the parties agreed that the Board erred when it applied a standard that was inconsistent with 38 C.F.R. § 4.16, and remanded the Veteran's claim to the Board consistent with the terms of the Joint Motion. In a December 2019 decision, the Board again denied entitlement to a TDIU. The Veteran appealed the Board's December 2019 decision to the Court. In a July 2021 Memorandum Decision, the Court set aside the Board's December 2019 decision and remanded the Veteran's claim to the Board. Entitlement to a total disability rating based on individual unemployability due to service connected disability is remanded. While the Board regrets any additional delay, particularly given the long appellate period in the present case, remand is found needed prior to adjudication of this matter. The Veteran was last provided with VA examination concerning the severity of his service-connected PTSD in March 2015. At that time, he reported working part-time as a minister and working for himself in the upholstery business. VA treatment records from June 2021 indicate that he is presently retired, and a June 2021 VA neurology consult record documented the Veteran's reports of experiencing a gradual increase in forgetfulness over the past two years, with a diagnostic study finding mild dementia due to reports of decreased organizational capacity, complaints of forgetting the location of objects, and occasionally forgetting to pay bills. As this could represent a worsening of the Veteran's service-connected symptoms, contemporaneous examination is found needed to determine whether his dementia is a progression of his service-connected PTSD, and to assess the Veteran's remaining functional ability in terms of occupational functioning. In so finding, the Board recognizes that the Veteran's representative has submitted private vocational opinions stating conclusions that the Veteran has been unable to secure and follow substantial gainful employment since at least 2005, and that the work he has performed since that time has been in a protected work environment. However, these individuals appear to have based such opinions on a general concept of a typical competitive work environment requiring a full time, 40 hours per week, routine, inflexible work schedule, but did not discuss why the Veteran would not have been able to engage in a more-isolated, flexibly-scheduled occupation, given this particular veteran's past experience as a self-employed furniture upholsterer and experience doing farm work, part time for many years. The ultimate question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. Whether or not a veteran's actual employment at a point in time can be considered marginal (e.g., in a protected environment) is not dispositive of this question, as entitlement to a TDIU hinges on the Veteran's retained mental and physical ability to engage in occupational tasks. That a veteran is unemployed, underemployed, engaged in employment that can be considered marginal should be considered when making such a determination, but is not the only consideration. The Board is not yet deciding whether the Veteran's prior work during the relevant appeal period qualifies as marginal employment. At the May 2013 Board hearing, the Veteran testified that his friend lets him use a workshop for his upholstery business free of charge, in exchange for helping him with his farm work, where he has cattle, grows tall grain, wheat and oats. He explained that the farm work is a seasonal-type thing and varies in how much time it takes, so there are times when it's 20 hours a week and times when "we may not do anything at the workshop" but harvesting and storing the grain and might work 40 or 60 hours one week. That he was not paid a salary for the farm work, but was instead provided with access and use of a workshop, free of charge, does not change the fact that he was receiving something of value for his services. On remand, a retrospective vocational opinion should be sought which specifically considers the Veteran's particular educational and work background, in terms of his retained ability to engage in occupational tasks, considering the effect of his service-connected disability, alone. Further, as the Veteran has undergone a change in employment, additional action should be taken to obtain updated information from the Veteran's prior employer regarding the specifics of the Veteran's work and departure (e.g., date of retirement, reason for ending work, any accommodations made for the Veteran, number of days lost due to PTSD, etc....). The Board notes that while the Veteran has described receiving accommodations in his position as a minister (such as always having another person with him ready to take over if the Veteran becomes overwhelmed, having a flexible schedule, and having the ability to leave the pulpit and for someone else to take over if he has an increase in symptoms, which he reported has happened on multiple occasions), his church employer filled out a VA Form 21-4192 in 2017 on which they wrote "none" for concession made to employee by reason of age or disability. The section for "type of work performed" was left blank. Clarification should be obtained from the Veteran's former employer as to the type of work the Veteran performed for the church and what, if any, concessions or accommodations were made for his PTSD symptoms. Finally, the Board notes that the Veteran has filed an appeal under the Appeals Modernization Act framework, seeking Higher-Level Review of a January 2022 rating decision which denied his claim of entitlement to service connection for essential tremors as a result of exposure to herbicides. An August 2016 VA orthopedic consult note documents the Veteran's report of persistent symptoms of intermittent left hand numbness, loss of grip and pinch strength, and statement that he "had to give up job upholstering due to [symptoms]," but still worked part time on a farm and with metal and cardboard recycling. Because a decision on the appeal concerning entitlement to service connection for essential tremors could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is needed. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete with updated information and return to the AOJ. Ask the Veteran to submit any authorization needed for VA to obtain information from his employer. 2. Thereafter, contact the Veteran's former church employer to obtain information about his employment, including the date and reason for the end of the employment relationship, hours worked per week, income, type of work performed, any special accommodations made for the Veteran in light of his PTSD, and work time lost due to his PTSD. A copy of any request(s) sent to the former employer and any reply should be included in the claims file. 3. After all records responsive to the above are associated with the claims file, schedule the Veteran for a VA mental health examination to determine the severity of his service-connected posttraumatic stress disorder, particularly with respect to manifestations and impairment since the March 2015 PTSD examination. The claims-file must be thoroughly reviewed by the examiner in connection with the examination, and a history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner is asked to describe, in detail, the impact of the Veteran's psychiatric symptoms on his functional abilities, including how the functional impairment impacts functioning associated with employment (e.g., ability to appropriately interact with supervisors and coworkers, duration of time able to remain focused on a task with or without breaks, etc...). If the Veteran has another psychiatric disorder with symptoms separate and distinct from his service-connected PTSD, the examiner should so state and identify a diagnosis. A clear rationale should be included for any conclusion or opinion stated. 4. After completing the above, and associating all responsive records and the medical opinion with the claims file, schedule the Veteran for an evaluation with a VA vocational or similar occupational specialist ("evaluator") for an assessment of the effect of the Veteran's service-connected disability on his employability. Such evaluation need not be in person, but may be conducted via telephonic or electronic means, if found warranted. Specifically, the evaluator is directed to assess the extent of functional and industrial impairment resulting from the Veteran's service-connected PTSD, alone. The Veteran should be asked to provide additional details/clarification as to the type and extent of any work (volunteer, paid, or otherwise in trade) he performed during the relevant appeal period, and when (if ever) he ceased performing such work. The record reflects that at least during part(s) of the appeal period, the Veteran was working part-time as a church chaplain and self-employed upholsterer, was gathering and selling recyclable materials, was doing farm work over an extended period of time in exchange for access and use of a workshop for his upholstery work, was volunteering with a school mentoring program, and has been serving as the primary caregiver for his wife with dementia. The evaluator should provide an opinion whether, considering the Veteran's education and work history and impairment from his service-connected PTSD, alone, he retained the ability to engage in work/an occupation that could be compensated at a level exceeding the poverty threshold for one person, without extraordinary accommodations from an employer. In particular, the specialist is asked to comment on whether the Veteran's functional limitations from PTSD would prevent him from securing and following such work in the upholstery or farm work fields, and whether such work exists which would allow him flexibility in his schedule and/or limited contact with people, if found necessary. In responding to the above, the evaluator should consider what sort of occupational tasks (and duration of such) the Veteran would be able to perform during a typical work day/week, considering only the impairment from his service-connected PTSD. Due to the length of the relevant appeal period (dating back to 2005), the evaluator should identify any periods of time (if any) during which the Veteran's level of functional impairment from his PTSD has varied significantly, discussing the resulting functional impairment during each period. A clear rationale must be provided for any opinion or conclusion stated. 5. After completing the above, and after a Higher Level Review decision has been issued on the intertwined appeal concerning entitlement to service connection for essential tremors, conduct any further development found necessary in light of the expanded record then readjudicate the Veteran's claim for a TDIU. If the benefit sought is not granted for the entirety of the relevant appeal period, issue the Veteran and his representative a supplemental statement of the case and allow them an opportunity to respond before returning the case to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.