Citation Nr: 22017809 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 14-30 245 DATE: March 26, 2022 REMANDED Entitlement to a compensable rating for residuals of malaria, to include severe chills, is remanded. Entitlement to individual unemployability based on total disability (TDIU) prior to January 1, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1964 to October 1968, including service in the Republic of Vietnam from October 1967 to October 1968. These matters come before the Board of Veterans' Appeals (Board) from August 2011 and May 2015 respective rating decisions of the Department of Veterans Affairs (VA) Regional Office. In May 2018, the Veteran testified regarding these issues at a Board hearing conducted before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board subsequently remanded these matters for further specific developments in August 2018, October 2020, February 2021 and most recently, in August 2021. They have now been returned to the Board for adjudication. Recharacterization of Issue on Appeal With regards to the Veteran's claim for compensable rating for residuals of malaria, notwithstanding that current testing reflects that the Veteran does not have active malaria, however, in light of a positive medical opinion that the Veteran's reported severe chills are indicative of residuals of malaria, the Veteran's claim has been recharacterized to reflect such. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). 1. Entitlement to a compensable rating for residuals of malaria, to include severe chills, is remanded. The Board notes that in a January 2022 addendum opinion, a VA examiner reported that there is no evidence that the Veteran has had active malaria since the Veteran's treatment in service in 1965 and also cited to the 2021 negative malaria smear test. Furthermore, with regards to affected organs, that "[t]here is no evidence of hepatomegaly, splenomegaly or involvement of either the liver or spleen with malaria and the veteran has no signs or symptoms suggestive of neuro-malaria, which would be readily apparent. The laboratory cited above reveals normal LFTs back to 1992 through 2019. There is no imaging suggesting enlargement of the spleen or liver or other abnormal changes." Despite this finding, the Veteran has asserted that he has had severe chills throughout the appeal period, which has been conceded by the RO in granting him service connection for severe chills in a January 2022 rating decision, effective June 14, 2010, the date of his increased rating claim. Consequently, in view of the fact that there must have been some functional impairment associated with the Veteran's chills in order to warrant entitlement to service connection in light of the ruling in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), the Board finds that another remand is necessary for further evidentiary development of the Veteran's claim on appeal to determine whether the functional impairment associated with the Veteran's severe chills warrants a compensable rating. 2. Entitlement to individual unemployability based on total disability (TDIU) prior to January 1, 2018, is remanded. The Board remanded this issue in August 2021 for additional development, noting that the Veteran's file is currently incomplete with regards to his complete work history for this period of appeal. The Veteran reported that he started working parttime as a locksmith in 2009 until December 2017 when he last worked, but there is no record of his earned wages during this period, including information concerning any accommodations that his former employer(s) provided, if any, due to his service-connected disabilities throughout the appeal period. The record reflects that even though the RO requested that the Veteran provide such information in a September 10, 2021, correspondence (in which is attorney of record was copied), to date, the Veteran has not submitted the requested information. See, September 2021 Subsequent Development Letter. As the Veteran's other matter is being remanded, the Board will give the Veteran one final opportunity to provide the requested information necessary to further develop his TDIU claim (prior to January 1, 2018) before adjudicating this matter. The Board notes that the Veteran has a duty to cooperate in the development of his claim, and failure to do so without good cause may result in the denial of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. With the Veteran's assistance, the Agency of Jurisdiction (AOJ) must obtain and associate with the Veteran's file any outstanding medical records for his service-connected claims, particularly with regards to any reported functional impact on his employability for the period starting in November 2010 through December 2017. 2. The AOJ must also request that the Veteran describe any accommodations provided by his former employers during the period he worked parttime (from 2009 to December 2017), to cope with the functional impairment of his service-connected disabilities which may qualify his former workplace(s) as a "sheltered and/or protected work environment" under the criteria of 38 C.F.R. § 4.16 and the holding in Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). This information may include, but is not limited to, allowances for freedoms not normally provided to other similarly situated workers, such as remote employment, periods of rest as needed and/or specialized office settings to reduce light and/or sound. The AOJ must further request that the Veteran verify his personal income from 2009 to December 2017, to include the submission of Internal Revenue Service (IRS) W-2 Forms, tax returns and/or pay stubs. The Veteran is hereby informed that he has a duty to cooperate in the development of his claim, and failure to do so without good cause may result in the denial of her claim. Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 C.F.R. § 3.655. After the completion of above, the AOJ must determine whether the Veteran's income was below the poverty threshold as per the standards of the United States Department of Commerce, Bureau of the Census, for any period from 2009 to December 2017. 3. The AOJ should also schedule the Veteran for an examination to determine the extent and severity of the Veteran's severe chills that have recently been service connected as associated with the Veteran's service-connected malaria. The record and a copy of this Remand must be made available and reviewed by the examiner. After a review of the record, the examiner should provide responses to the following: State the nature and extent to which the Veteran's reported symptoms of severe chills results in functional impairment that impacts the Veteran's earning capacity, and the medical basis for such. The examiner is advised that the Veteran is considered competent to be able to report symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. The AOJ should ensure compliance of the foregoing and any other necessary development, and then readjudicate the Veteran's disability claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.