Citation Nr: A25041241 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 211108-196817 DATE: May 6, 2025 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1971 to April 1972. In November of 2021, the Veteran filed a notice of disagreement (NOD) in which he requested review under the Appeals Modernization Act (AMA) review system in response to a February 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran elected the evidence lane with a 90-day period to submit additional evidence. 38 C.F.R. § 20.301. The only exception is if, as here, the Board finds that there was a pre-decisional error. Turning next to the reasons for this remand, the Board observes that there are inconsistencies in the evidence that should have been resolved prior to the matriculation of this claim. More specifically, it was asserted on multiple occasions during the period on appeal that the Veteran is unemployed, to include as stated by the private clinician who authored the November 2021 vocational report. However, the Veteran stated on the February 2022 VA Form 21-8940 received during the relevant evidentiary window that he was "currently working". It was also asserted that, "I can come and go as I need to due to my disabilities". The Board notes that TDIU is not warranted when the Veteran is employed beyond marginal employment. Substantially gainful employment is generally defined as work which is more than marginal, and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce as the poverty threshold. In this case, however, it is unclear whether the Veteran has ceased employment altogether, and even if so, when his most recent employment began and ended. As the Veteran's employment history appears to have changed since he last completed a VA Form 21-8940, he should be asked to complete an additional one on remand. Further, an earnings statement should be obtained from the Social Security Administration (SSA) and associated with the Veteran's claims file in order to clarify the nature of his income, if any. The matter is REMANDED for the following actions: 1. Request that the Veteran complete and return an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Contact SSA and request the Veteran's earning statements for the entirety of the relevant period. 3. Then, ask the Veteran's identified former employers who have not yet done so to complete a clarifying Request for Employment Information in Connection with Claim for Disability Benefits, VA Form 21-4192. Each employer is specifically asked to: (a) list all dates of the Veteran's employment, the positions worked, and rates of pay/salary information for those respective periods; (b) clarify the total number of hours of leave taken due to the Veteran's then-service-connected disabilit(ies); and (c) provide, if available, any documentation regarding any requests for a medical/disability employment accommodation. Complete the above before proceeding. 4. Obtain an opinion from an appropriately situated VA clinician. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If necessary to respond to any inquiry below, the Veteran should be scheduled for an interview, either via telephone or in-person, whichever is more convenient, to obtain such information. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should address the combined effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment during the relevant period, and specifically reconcile the Veteran's ability to function in an occupational environment. The clinician should elicit and set forth the pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and industrial capacity. The clinician is advised that being unemployed during the period on appeal is not equivalent to being unemployable for VA purposes. In responding to these inquiries, any side effects the Veteran experienced from medications for the service-connected disabilities should be considered. If the evidence demonstrates that the Veteran experienced varying levels of impairment at different points during the appeal period, the clinician should so state and provide the basis for such conclusion. If the clinician determines that the Veteran could have gainfully functioned in a sedentary occupational environment, then the clinician is asked to define what this means for this specific Veteran. The clinician must provide a comprehensive report, including complete rationales for all conclusions reached and if unable to provide any of the requested information without resorting to speculation, he or she should so state, and explain why providing an opinion is not feasible. In so opining, the clinician should address any lay statements, attestations made by former and/or current employer(s), and assertions stated by the Veteran's representative. 5. Thereafter, readjudicate the claim after considering the pertinent evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.