Citation Nr: 1633102 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 13-00 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Walton J. McLeod, Attorney ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from November 1966 to August 1969 and from May 1981 to May 1984. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2013, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. The Board also denied an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). A search of the online docket database on the website of the Court of Appeals for Veterans Claims (Court or CAVC) shows that the Veteran did not appeal that portion of the Board's decision. The issues of entitlement to increased ratings for his service-connected PTSD, knees, skin, hearing loss, and tinnitus disabilities were raised by the Veteran in a February 2014 statement. Those issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). A claim for an increased rating for the service-connected back disability was adjudicated in an April 2015 rating decision. It does not appear that the Veteran filed a notice of disagreement (NOD) after this rating decision. However, additional evidence was added to the claims file within one year of that determination, including a VA examination conducted in April 2016. Under § 3.156(b), when evidence is received within the appeal period, the claim remains open until VA provides a determination that explicitly addresses and is directly responsive to this new submission. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (explaining that Beraud controlled the Veteran's case). Therefore, the Board does not have jurisdiction over these issues, and they must be referred to the AOJ for appropriate action. This appeal was processed using the Virtual VA and Virtual Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND This matter must be remanded for two reasons. First, as an evidentiary matter, the claims file currently contains conflicting evidence regarding when the Veteran stopped working. A January 2013 VA Report of Contact reflects the Veteran's statement that he had not worked in the past two years (approximately January 2010). In a December 2013 VA Form 21-8940, he identified the date he last worked full-time was 2008. In a February 2014 VA Form 21-8940, he identified the date he last worked full-time was 2006, and stated that he had no income other than from VA and Social Security. In a March 2016 VA PTSD examination, the Veteran reported having to close his business when the economy and real estate market was crashing. (Presumably, he is referring to what is often commonly known to as the 2007-2008 financial crises.) More recently, at a private evaluation in May 2015, he reported that he continued working part-time in the real estate field until January 2015. Based on his statements, it is not clear when he stopped working. Complicating this picture, the RO did a search in June 2010 and September 2010 of the South Carolina Secretary of State Search Business Filings. This search revealed multiple for-profit businesses, which were in good standing, where the Veteran was the registered agent. A current search of that same database continues to show four for-profit businesses in good standing, where the Veteran is the registered agent. These include a property management company, a realty company, and an investment firm. Importantly here, a TDIU may only be granted where the Veteran would not be able to obtain or maintain a substantially gainful occupation-or, put another way, where the Veteran is not capable of more than marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). 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. 38 C.F.R. § 4.16(a). In 2015, this amount was $12,331. 00. See United State Census Bureau, Poverty Thresholds, 2015, available at http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Here, the Board is mindful of the Veteran's recent filings, such as a January 2016 Congressional inquiry, indicating financial difficulties. However, the above-cited evidence suggests that the Veteran continued working through at least January 2015, and may still be generating income from his four businesses. This raises the question of whether his earned annual income for any period of time has exceeded the poverty threshold. Remand is needed to obtain further information regarding his income during the years at issue. Remand is also needed because the Veteran has recently raised multiple new claims for increased ratings for his service-connected disabilities. As stated in the Introduction section herein above, these claims were filed in February 2014, and included his service-connected PTSD, back, knees, skin, hearing loss, and tinnitus. See 38 C.F.R. § 3.155 (in effect prior to September 2014). Those claims remain pending at the AOJ level. Because the outcome of those claims will have a direct impact on the instant claim for TDIU, the matters are intertwined. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); cf Todd v. McDonald, 27 Vet. App. 79 (2014). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he report all income from any source, including self-employment and investment income, during the years he is claiming a TDIU. This should include asking the Veteran to submit copies of his tax returns during the relevant period. 2. Next, take all supplemental action needed, if any, to verify the Veteran's earned income during the years claimed. 3. After completing the above actions, plus resolution of the pending claims for increased ratings, the Veteran's TDIU claim should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).