Citation Nr: 22017366 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 13-33 999 DATE: March 24, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served in the Marine Corps from July 1973 to July 1975 and the Army from September 1979 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In January 2014, the Veteran withdrew his request for a Board hearing. In October 2017, the Board remanded the claims for additional development. In a September 2018 decision, the Board denied service connection for prostate cancer and entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Order, the Court granted a Joint Motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. In February 2020 the Board denied the claim for service connection for prostate cancer and remanded the claim for entitlement to a TDIU. As an initial matter, the Veteran and his representative have requested that a claim for service connection for prostate cancer and glaucoma should be remanded for additional development. See January 2022 Appellate Brief. The Board notes that the Veteran's claim for service connection for prostate cancer was denied in its February 2020 decision. As the claim has been denied, and the Veteran has not filed a claim to reopen, nor has he appealed that denial to the United States Court of Appeals for Veterans' Claims (Court), the Board finds that the issue of entitlement to service connection for prostate cancer is not before the Board at this time. Lastly, a review of the Veteran's record fails to show that he has applied for service connection for glaucoma. 1. Entitlement to a total disability rating based on unemployability is remanded. The Veteran contends that he is entitled to a TDIU. See Id. He is service connected for hypertensive heart disease at 60 percent from September 2006, an acquired psychiatric disorder at 50 percent from May 2004, and hypertension at 10 percent from January 1998. His combined disability rating is 80 percent from September 2006. Therefore, the Veteran meets the schedular rating criteria for a TDIU for the entire period on appeal. The Veteran's education consists of four years of high school, and at least three years of college. See September 2021 VA 21-8940. During active duty, he worked as a tanker and TV production specialist. Post-service, he has worked as a clerical worker for VA, in cable television production from, an outreach specialist, a lab technician in a university setting, a lawncare worker, a house sitter, and a store clerk. The Veteran contends that his service-connected disabilities prevent him from following or securing substantially gainful employment. It appears he last worked full-time as a lawncare worker in April 2013. See June 2013 Veteran Statement. However, his VA 21-8940 indicates he last worked full time in December 2012. He currently works part-time as a store clerk from January 2015. See Id. Before addressing the merits of the TDIU issue, the Board finds that additional development of the evidence is required. First, the RO should send the Veteran a letter requesting that he fill out (1) an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability); and (2) a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The RO should request that the Veteran fill out these TDIU forms and submit them back to facilitate a more thorough adjudication of the TDIU claim. In this regard, the Veteran's employment history and yearly income is unclear for the entire appeal period (i.e., from February 2012). In an informal claim for TDIU he stated that he was in dire financial need. See February 2012 Informal Claim. As noted above, the Veteran indicated he was dismissed from his full-time job in April 2013. In contrast, his formal TDIU application indicated he last worked full-time in December 2012. Moreover, in a November 2010 VA examination the Veteran indicated he had not had regular work since 1989 and had only worked sporadically as a handyman or in lawn care. He is now working part-time as a store clerk. Thus, the Veteran's precise employment history and yearly income for the period on appeal is unclear from the record. Therefore, the Veteran should clarify this conflicting evidence of record by submitting (1) an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability); and (2) a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). Second, after securing any employment records from the Veteran, when adjudicating the TDIU claim, the RO should consider whether the Veteran's employment on either a full-time or part-time basis, constitutes "marginal" employment. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where reasonably raised by the facts of a particular case, the Board must consider and expressly state whether the Veteran would be able to obtain or maintain a substantially gainful occupation - or, put another way, whether the Veteran is capable of more than "marginal employment." See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). It is unclear from the record whether the Veteran's employment as a lawncare worker or store clerk, on either a full-time or part-time basis, is considered "marginal" employment. Finally, the Veteran was afforded VA examinations to determine the effects of his service-connected disabilities on his employment. A June 2021 VA examination of his hypertensive heart disease and hypertension found that the Veteran would have "difficulty with walking, running and climbing/descending stairs and working on scaffolding especially in increased ambient temperatures due to poor balance and weakness, headaches, and visual disturbances sometimes associated with hypertension and the side effects of antihypertensive medications." An August 2021 VA examination of his acquired psychiatric disorder found that the Veteran "appears to retain the ability to understand, remember, and carry out at least simple, repetitive instructions and tasks. He appears to be capable of interacting appropriately with coworkers and of accepting respectful feedback from supervisors." To the extent that the RO did not obtain a single opinion addressing the collective impact of his service-connected disabilities on the Veteran's employability, the Board acknowledges that such an opinion is not required. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir 2013). However, given that the Veteran bases his claim for TDIU on the combined effects of his service-connected disabilities, the Board finds such an opinion would be helpful to the adjudication of the claim for TDIU. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following actions: 1. Afford the Veteran an opportunity to clarify his work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), and in particular, for 2012 to the present. 2. The Veteran should be invited to provide a detailed work history, to include the number of hours worked per week, the dates of his employment, the time lost from illness, the highest gross earnings per month, and the reason that the employment ended, and to submit VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits for all identified employers. 3. Request that the Veteran identify all employment that he contends was marginal and specify any accommodations made by the employer to permit the Veteran to maintain the employment. 4. The Veteran should be provided with a VA examination in order to obtain an opinion as to the combined impact of his service-connected disabilities on his ability to perform physical and mental tasks in a work-like setting, without regard to the Veteran's age or the impact of any nonservice-connected disabilities. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.