Citation Nr: 22040686 Decision Date: 07/15/22 Archive Date: 07/15/22 DOCKET NO. 18-14 193A DATE: July 15, 2022 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1982 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) from a March 2015 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In March 2020, the Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing on the issues of service connection for a psychiatric disorder and entitlement to a TDIU. In May 2020, the Board issued a decision denying entitlement to service connection for an acquired psychiatric disorder and entitlement to a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Remand (JMR) and vacated the May 2020 Board decision. The JMR remanded the issue of entitlement to a TDIU because it was inextricably intertwined with the issue of service connection for a psychiatric disorder. JMR at 3-4. Shortly after the Court granted the JMR and remanded the matter, in August 2021 the Board notified the Veteran in writing that the VLJ who conducted the March 2020 hearing was no longer employed by the Board. As a result, the letter informed him of his right to request a new hearing before another VLJ. Later that month, the Veteran responded by informing the Board that he declined to appear at another Board hearing. Then, in September 2021 the Board remanded the issues of service connection for a psychiatric disorder and TDIU. After returning to the Board after development was conducted at the AOJ, in March 2022 the Board granted service connection for a psychiatric disorder and remanded entitlement to a TDIU for the AOJ to adjudicate after rating the psychiatric disorder. In a March 2022 rating decision, the AOJ assigned a rating of 70 percent from July 2013 for the psychiatric disorder. Entitlement to a TDIU was then denied in an April 2022 Supplemental Statement of the Case. Although the Board regrets delaying this case further, unfortunately remand is necessary again as the current evidence of record requires additional development to adjudicate the claim. On this point, the current evidence is out-of-date and presents inconsistencies regarding the Veteran's employment and education history that require clarification. Specifically, the Veteran reported on the August 2014 VA Form 21-8940 that he last worked at a fitness center from 2008 to 2012, that he worked 80 hours per week, and that he lost 300 days of work due to illness. The October 2014 VA Form 21-4192 does not include the employer's name and address in Section I. It also indicates that the Veteran worked 4-hours per day, or 20-hours per week, and lost 1,300 hours in the past 12-months due to illness. If the Veteran worked 4-hours per day, losing 1,300 hours of work would equate to 325 days. In contrast to this evidence suggesting that the Veteran formally stopped working in 2012 but essentially missed the entire year of work leading up to 2012, June 2013 VA treatment records state that the Veteran was currently working at a private gym that he owned. In addition, other evidence of record indicates that the Veteran has worked as recently as 2017 or 2020. On this point, a July 2021 attorney brief states that the Veteran has been unsuccessful in returning to gainful employment since leaving the fitness center in 2012; however, a March 2021 private psychological assessment seems to suggest that the Veteran worked at another gym as recently as 2017. See March 2021 psychology report of Dr. Q.A.S. at 4. In addition, an April 2017 VA treatment record states that the Veteran was working full-time as a personal trainer at a fitness center. The October 2017 Social Security Administration (SSA) decision states that the Veteran has "worked after the alleged disability onset date, from March 18, 2017, and continuing past the date of the hearing." See SSA decision at 3. Specifically, the SSA decision states that the Veteran "testified that since March 2017 he has worked as a personal trainer." Id. at 4. Moreover, at the March 2020 Board hearing the Veteran testified that he was working as a personal trainer that month and that the day of the hearing was his last day. See Board hearing transcript (Tr.) at 13. All of this evidence supports the need to obtain updated VA Forms 21-8940 and 21-4192. Additionally, the August 2014 VA Form 21-8940 indicates the Veteran had 2-years of college at that time. However, other evidence of record indicates that he may have obtained additional education since 2014. Specifically, the SSA decision noted that the Veteran "testified that three years prior to hearing he began attending school part-time and through the end of 2016 [] has completed almost half of the program." Id. at 5. The decision specifies that the degree program is for kinesiology and athletic training. Id. Furthermore, the October 2021 C&P examination indicates the Veteran had an associate degree in business, which might be the 2-years of education referenced in the VA Form 21-8940, although this is unclear. In any event, clarification regarding the Veteran's education history is warranted. There is also evidence suggesting that the Veteran's work history includes more than working as a personal trainer at gyms and fitness centers. An April 2022 VA treatment record states that the Veteran's work history also includes construction and insurance. The Veteran testified at the Board hearing that he previously worked in construction and at one time had an insurance license and sold insurance. Tr. 14. The October 2021 C&P examination indicates the Veteran has had many jobs after service. Accordingly, clarification regarding the extent of the Veteran's other employment activities is also warranted. Lastly, although the record contains the SSA decision rendered by an administrative law judge in 2017, the Veteran's VA claims file does not appear to contain the SSA evidentiary record, to include examinations and various reports, developed during the SSA proceedings. See SSA decision List of Exhibits. On remand, the AOJ should ensure that the SSA evidentiary record has been requested and uploaded to the Veteran's VA claims file. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records. 3. Obtain and upload to the claim's file the evidentiary record developed and used in the Veteran's claim for disability benefits before the Social Security Administration. 4. Provide the Veteran an opportunity to complete and submit an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that reflects accurate and up-to-date information regarding his employment and education history. (Continued on the next page) 5. Provide the Veteran an opportunity to have his past employer(s) complete and submit a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran is advised that this form must be completed in full, including Section I which asks for employer name and contact information and must be signed by a representative of the employer. SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.