Citation Nr: 1300528	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  11-27 173	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to December 29, 2009.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran reportedly served on active duty from July 1992 to November 1992 and January 1994 to May 2006. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a Travel Board hearing in June 2008.  A transcript of that hearing has been associated with the claims file.  The case was remanded in July 2008, August 2009 and May 2012.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The remaining issue is entitlement to TDIU prior to December 29, 2009.  A 100 percent schedular rating is in effect from that date on.  

The Veteran's main contention is that prior to December 29, 2009, her service-connected disability essentially prevented her from engaging in substantially gainful employment.  The essence of the Veteran's argument is that although she was employed during certain periods, her disability forced her to take leave without pay to the extent that her employment was not substantially gainful.  

Although the claims file does include various leave statement associated with the Veteran's employment prior to December 29, 2009, the nature of the leave (paid or unpaid) is not readily discernible.  Moreover, there does not appear to be evidence of her annual income for the years from the TDIU claim (2004) to December 29, 2009.  It is noted that 38 C.F.R. § 4.16(a) provides that marginal employment shall not be considered substantially gainful employment.  This regulation further provides that marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Under the circumstances, the Board believes that the Veteran should be afforded the opportunity to supplement the record with supporting evidence of her earned income from 2004 through 2009. 

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO should contact the Veteran and request that she submit supporting evidence (earnings statements, income tax reports, etc.) showing her total earned annual income for the years 2004 through 2009.  

2.  If the Veteran does not furnish the requested supporting evidence of annual earned income, the case should be returned to the Board for appellate review.

If the Veteran does furnish such requested supporting evidence of annual earned income, the RO should review the record and determine if TDIU is warranted, issue a supplemental statement of the case (if the claim remains denied), and return the case to the Board after the Veteran is afforded an opportunity to respond. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).