Citation Nr: 22014286 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 14-21 005A DATE: March 12, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis prior to November 21, 2012, and on a schedular basis, thereafter, is remanded. Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to September 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in August 2019 and October 2021 at which times the case was remanded for additional development. The case is once again before the Board. This appeal originates from the Veteran's September 2012 informal claim on VA Form 21-4138 for compensation benefits to include a TDIU. VA will grant a TDIU, when the schedular rating is less than total, if the evidence shows that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. In the recent United States Court of Appeals for Veterans Claims (Court) case of Ray v. Wilkie, the Court found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In terms of the economic component, a "substantially gainful occupation" generally means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 31 Vet. App. at 73. In this case, records show that the Veteran earned his GED degree and that he participated in an apprenticeship program for carpentry for approximately two and a half years which he did not complete. They also show that he held various positions including driving a taxicab, selling vacuum cleaners, and working as a carpenter. VA medical center (VAMC) records show that he semi-retired in 2008 after undergoing quadruple coronary artery bypass surgery for coronary artery disease. These records additionally show that from at least 2013 to 2017 he continued to work part time in construction as a contractor/carpenter. An October 2014 VAMC addendum note shows that he worked as a contractor 20 hours a week. These records provide the only information regarding the Veteran's actual employment during the appellate period. This is despite the Agency of Original Jurisdiction's (AOJ's) request to him in October 2019 that he submit a completed VA Form 21-8940, "Application for Increased Compensation Based on Unemployability", to secure information necessary to properly adjudicate his claim for a TDIU. Accordingly, the Board finds that remand is necessary to obtain further clarification regarding the Veteran's employment during the appeal period and to determine whether he earned more than marginal income. On remand, the AOJ should provide the Veteran with another opportunity to complete and return an updated VA Form 21-8940, and conduct other development as needed to verify his income level and/or employment status. The Veteran's claim of entitlement to DEA is inextricably intertwined with the claim for a TDIU. As such, consideration of this claim must be deferred pending resolution of the TDIU appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). While the Board regrets the additional delay due to another remand, it is necessary to ensure that due process is followed and that there is a full record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The matters are REMANDED for the following action: 1. Ask the Veteran to complete and return an updated VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Conduct other development as needed to verify his income level and/or employment status. 2. Readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.