Citation Nr: 25004587 Decision Date: 04/03/25 Archive Date: 04/03/25 DOCKET NO. 12-09 777 DATE: April 3, 2025 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1974 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a July 2014 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in November 2014, May 2017, June 2018, February 2019, and April 2020. Subsequently, in an October 2022 decision, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus; denied entitlement to a disability rating in excess of 30 percent for diarrhea of uncertain etiology; and denied entitlement to a TDIU due to service-connected disabilities, to include on an extraschedular basis. The Veteran timely appealed the part of the October 2022 Board decision that denied entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court). However, the Veteran did not appeal the parts of the October 2022 Board decision that denied entitlement to service connection for bilateral hearing loss and tinnitus, and entitlement to a disability rating in excess of 30 percent for diarrhea of uncertain etiology. Therefore, these issues are not before the Board. In a November 2023 order, the Court granted an October 2023 joint motion for partial remand (JMPR), filed by the parties (the Veteran and the Secretary of VA), vacated the Board's denial of entitlement to a TDIU, and remanded the issue to the Board for adjudication consistent with the terms of the JMPR. Thereafter, in March 2024, the Board remanded the matter for additional development. After completing the additional development, the RO issued a May 2024 Supplemental Statement of the Case (SSOC) denying entitlement to a TDIU due to service-connected disabilities, to include on an extraschedular basis, and returned the matter to the Board for appellate review. The Board acknowledges that additional treatment records and a December 2024 VA examination report for stomach and duodenal conditions, which are pertinent to the issue on appeal, have been associated with the Veteran's claims file since the May 2024 SSOC. Under 38 C.F.R. § 20.1305(c), any pertinent evidence received following certification of an appeal to the Board must be referred to the RO for review unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. Here, as the Board is remanding the claim on appeal, there is no prejudice to the Veteran in adjudicating his claim without the added delay of seeking a waiver from the Veteran of RO consideration of additional pertinent evidence associated with the claims file. Furthermore, on remand, the RO will review and consider the additional evidence pertinent to the claim on appeal. Entitlement to a TDIU due to service-connected disabilities, to include on an extraschedular basis, is remanded. In the October 2023 JMPR, the parties agreed that in denying entitlement to a TDIU, the Board found that the symptoms of the Veteran's service-connected diarrhea included six to seven bowel movements with pain, and that such symptomatology was not sufficient to demonstrate a reasonable possibility that the Veteran was unemployable. The parties also agreed that the Board acknowledged that a May 2020 VA examination report noted the Veteran's diarrhea condition resulted in fatigue, decreased focus and concentration, and decreased mobility. Also, the examiner noted occasional stool incontinence. Furthermore, in a January 2010 statement, the Veteran asserted that his condition occasionally causes him to soil himself. The parties agreed that the Board acknowledged this evidence but failed to address this in determining whether there was a reasonable possibility that the Veteran was unable to maintain substantially gainful employment by reasons of his service-connected diarrhea condition so as to warrant referral of the claim of entitlement to a TDIU to the Director of Compensation Service for extraschedular consideration. Additionally, in the June 2023 Appellant Brief to the Court, the Veteran's representative argued that the Board noted the Veteran has six to seven diarrhea and bowel movements with pain daily, the Board addressed the effect of this on strenuous activities but did not address the impact of bathroom breaks. The representative argued that the Board should have afforded the Veteran a new examination to determine the duration of each of the Veteran's bathroom breaks in ascertaining the impact of these breaks on his ability to work. After reviewing the evidence of record consistent with the terms of the October 2023 JMPR, in March 2024, the Board remanded the matter for additional developments, including affording the Veteran a new examination for the service-connected disability of diarrhea to ascertain its impact of his ability to work, and referring the matter to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU. The Board specifically directed the examiner to address the Veteran's daily six to seven bowel movements with abdominal pain, fatigue, decreased focus and concentration, decreased mobility, and stool incontinence as noted by the VA examiner in the May 2020 VA examination report; the duration of each of the Veteran's bathroom break due to diarrhea and its impact on his work; and the Veteran's assertions that his condition causes him to occasionally soil himself, including while walking to work. Pursuant to the March 2024 Board remand, the RO afforded the Veteran an examination for the service-connected disability of diarrhea to ascertain its impact of his ability to work, and obtained a medical opinion in April 2024. Additionally, the RO obtained an advisory opinion from Director of Compensation Service for entitlement to a TDIU based on extraschedular consideration in April 2024. In the April 2024 VA medical opinion, the examiner stated that the diarrhea, fatigue, decreased focus and concentration, deceased mobility, and stool incontinence and abdominal pain requiring multiple visits (6 to 7 visits) to the bathroom would affect the Veteran's productivity, however, this does not preclude the Veteran from performing sedentary work. The Board finds that the April 2024 VA medical opinion regarding the impact of the Veteran's service-connected diarrhea on his ability to work inadequate because the examiner provided a conclusory supporting rationale for the rendered the opinion without sufficient explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, the examiner did not address the impact of duration of each of the Veteran's bathroom break due to diarrhea and the Veteran's reports of soiling himself on his ability to work, when specifically, the Board directed the examiner to address them. Finally, the examiner noted that fatigue, decreased focus and concentration, deceased mobility, and stool incontinence and abdominal pain requiring multiple visits (6 to 7 visits) to the bathroom would affect the Veteran's productivity, but this does not preclude him from performing sedentary work. However, the examiner did not address whether the Veteran needs special accommodations from his employer to perform sedentary work. Accordingly, the Board finds that a remand is warranted to obtain a new opinion on the impact of the Veteran's service-connected disability of diarrhea on his ability to follow a substantially gainful occupation. Additionally, the Board notes that in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. Id. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Board notes that in the June 2011 TDIU application form, the Veteran indicated that he worked full time until October 2008. However, at the July 2014 Board hearing, the Veteran testified that he worked full-time until 2012. Nonetheless, a June 2022 VA treatment record noted that the Veteran was working at a thrift store. Thus, the Board finds that there is inconsistent information regarding the Veteran's employment history. Therefore, the Board finds that a remand is also warranted to obtain an updated TDIU application form from the Veteran to clarify regarding the Veteran's employment history. The matter is REMANDED for the following action: 1. Request the Veteran to complete an updated TDIU application form, and to provide his employment, earnings, and educational history; and whether any special accomodation due to the service-connected disability of diarrhea of uncertain etiology was arranged by his employers to enable him to work. The Veteran should be notified that an updated TDIU application form is needed because there is inconsistent information in the evidence of record regarding his employment history. The RO is advised that a fully completed updated VA Form 21-8940, TDIU application form, is not compulsory; however, it provides the required information for further development and adjudication of the TDIU claim. However, the Veteran can provide the above requested information in any form. 2. Obtain a statement of the Veteran's full earnings history from the Social Security Administration. The Veteran should also be requested to clarify whether he engaged in any work activities for which Social Security taxes were not paid. 3. Schedule the Veteran for a new examination for the service-connected diarrhea of uncertain etiology, and forward the claims file to the examiner to obtain a medical opinion to determine the effects of diarrhea on the Veteran's ability to work. After reviewing the claims file, and copies of the October 2023 JMPR and this remand, the examiner should address the functional effects of the Veteran's service-connected disability of diarrhea of uncertain etiology on his ability to follow a substantially gainful occupation. The examiner should specifically address the Veteran's daily six to seven bowel movements with abdominal pain, fatigue, decreased focus and concentration, decreased mobility, and stool incontinence as noted by the VA examiner in the May 2020 VA examination report. See the document associated with the Veteran's claims file with entry dated 05/13/2020, titled "C&P Exam." The examiner should also address the duration of each of the Veteran's bathroom break due to diarrhea and its impact on his work. The examiner should also address the Veteran's January 2010 statement in support of claim, in which he asserted that his condition causes him to occasionally soil himself, including while walking to work. See the document associated with the Veteran's claims file with entry dated 01/12/2010, titled "VA 21-4138 Statement In Support of Claim." Finally, the examiner should address whether the Veteran needs special accommodations from his employer due to disability of diarrhea to enable him to perform work. Clear supporting rationales must be provided for all the opinions rendered. If the examiner determines that it is not possible to provide an opinion without resorting to speculation, then the examiner must provide an explanation of why that is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the examiner's knowledge. (Continued on the next page) ? 4. Thereafter, refer the case to the Director of Compensation Service for consideration of the issue of entitlement to an extraschedular TDIU based on the Veteran's service-connected disabilities under 38 C.F.R. § 4.16(b). If the Director finds that the Veteran is not entitled to a TDIU on an extraschedular basis, then the Director should issue a memorandum explaining the reasons for his or her decision and a summary of the evidence considered. 5. Thereafter, readjudicate the claim of entitlement to a TDIU. If the benefit sought remains denied, issue the Veteran and his representative an SSOC and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem 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.