Citation Nr: 1634872 Decision Date: 09/06/16 Archive Date: 09/09/16 DOCKET NO. 08-03 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 31, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to May 1988 and from April 1990 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Board notes that the current matter was previously before it in June 2014 and August 2015 at which times it was remanded for further development. The matter was most recently readjudicated by the Appeals Management Center in an April 2016 supplemental statement of the case and was thereafter returned to the Board in July 2016. Unfortunately, as discussed below, additional development is required and the matter must again be remanded. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the instant case, the Veteran first claimed unemployability in 2006. Entitlement to a TDIU has also been part and parcel of the Veteran's various increased rating claims previously decided by the Board and no longer part of the current appeal. In September 2012 the Veteran was awarded a TDIU, effective from January 31, 2011. Thus, the issue currently before the Board is whether the Veteran is entitled to a TDIU prior to January 31, 2011. As a threshold matter, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2015). A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16 (a). In the instant case, the Veteran has been in receipt of a combined 70 percent evaluation since November 10, 2004, and has been rated as 40 percent for fibromyalgia since that date. Accordingly, the outcome of this case turns on whether, prior to January 31, 2011, the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities. "Substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history. Faust v. West, 13 Vet. App. 342, 355-56 (2000). Marginal employment, however, is not considered to be substantially gainful employment. 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, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In its 2015 action, the Board noted the Veteran's assertions that he was terminated from employment in 2006 because the medications he was required to take for his service-connected disabilities rendered him unable to maintain employment as truck driver. The Board pointed out, however, that the Veteran had history of subsequent employment with a rope manufacturer from 2007 to 2008 and as an electrician from 2008 to January 2011. Although it appeared that the Veteran was in fact employed and employable prior to January 31, 2011, the Board found the record to be unclear as to whether the Veteran's annual income was below the poverty level at any point prior to January 31, 2011. In that regard, the Board pointed out that in his November 2011 statement, the Veteran had reported a range of incomes, including one below the federal minimum wage. The Board thus found it necessary to remand the issue of entitlement to a TDIU prior to January 31, 2011, for the AOJ to attempt to clarify and verify the Veteran's income while employed prior to January 31, 2011. Specifically, the Board directed that on remand the AOJ was to obtain income information for the Veteran from the Social Security Administration or other appropriate agency for the appeal period. On remand from the Board, the AOJ sent to the Veteran a letter dated in December 2015 asking him to provide specific income information, as well as information regarding the possibility that his employment was in a sheltered workshop, for his periods of employment during the appeal period. The AOJ also contacted the SSA and requested the Veteran's SSA records. The AOJ did not indicate that the records it was specifically seeking were those related to the Veteran's earned income from 2006 forward. In response, the SSA supplied records related to the Veteran's claim for SSA benefits and the resulting disability determination. Records contained amongst those received from the SSA in 2015 show that the Veteran was employed as a salesman from April 1994 to June 2006, as a rope maker from July 2007 to March 2008, as a dishwasher from November 2007 to May 2008, and as an electrician from March 2008 to January 2011. The Veteran also reported hourly wages from 2007 forward ranging from $6.15 per hour to $8.00 per hour. As stated above, 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, Bureau of the Census, as the poverty threshold for one person. In 2007, the poverty threshold for one person was $10,509; in 2008 it was $11, 201; in 2009 it was $10, 956, and in 2011 it was $11,139. See http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Although it would appear that the Veteran's income would have been above the poverty threshold for one person when working, that assumption is based on the Veteran working a 40 hour week every week for 52 weeks a year. In remanding the matter for the AOJ to obtain actual wage and earnings data for the Veteran during the relevant time period, the Board did not make such as assumption. As noted above, in remanding the matter in 2015, the Board directed the AOJ to obtain income information for the Veteran for the relevant time period. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliances with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the AOJ did not indicate that the records it was specifically seeking from SSA were those related to the Veteran's earned income from 2006 forward, the Board cannot conclude that its prior remand directives were fulfilled or that the records sought are unavailable and another remand of the claim on appeal is required. Stegall, supra. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should contact the SSA and request the Veteran's earning statements from 2006 forward. If the SSA informs the AOJ that it cannot provide earnings statements to VA without the Veteran's approval, the AOJ should undertake to obtain any documentation needed from to the Veteran to enable to AOJ to obtain his SSA earnings statements. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159 (c) with regard to requesting records from federal facilities. All records and/or responses received should be associated with the claims file. 2. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issue remaining on appeal. As part of its readjudication, the AOJ must consider whether the Veteran's pre-January 31, 2011, employment was of a marginal nature. If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Jonathan Hager 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).