Citation Nr: 1750193 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 10-06 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder, prior to September 2, 2014. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, prior to September 2, 2014. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Veteran testified at a Board hearing held at the RO before a Veterans Law Judge. A transcript of this hearing has been added to the Veteran's electronic claims file. In April 2011, the Board remanded this matter for additional evidentiary development. In December 2011, the Board issued a decision which denied the Veteran's claim for an increased evaluation in excess of 50 for posttraumatic stress disorder (PTSD). The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In January 2013, the Court issued a memorandum decision which vacated the Board's December 2011 decision and remanded this matter for additional consideration. In October 2013, the Board remanded this matter for additional evidentiary development. In February 2015, the RO issued a rating decision which granted a total schedular rating of 100 percent for the Veteran's PTSD, effective September 2, 2014. The Veteran continues to seek a higher evaluation and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating), prior to September 2, 2014. In January 2017, the Veteran was notified that the Veterans Law Judge who conducted his November 2010 Travel Board hearing was not available to participate in this appeal. Although he was informed of his right for a new hearing, no such request has been received. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased evaluation in excess of 50 percent for PTSD and entitlement to a TDIU rating, prior to September 2, 2014. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). The regulation explains that marginal employment shall not be considered "substantially gainful employment." Marginal employment is defined as employment where 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. Id.; see also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases where there is employment in a protected environment, such as a family business or sheltered workshop. Id. The Veteran's representative has argued that the Veteran was unable to obtain and maintain substantially gainful employment since at least 2005. A review of the record reveals that the Veteran was employed full time as a tour guide throughout this period. However, further information concerning the details of his employment during this time frame are lacking. Accordingly, the AOJ must seek all available additional information concerning the Veteran's employment during the period of time prior to September 2, 2014. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete an updated Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940. 2. Ask the Veteran to provide proof of his annual salary for 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, and 2015, such as copies of salary statements, wage receipts, W-2s, and/or tax returns for each year. The Veteran must also be asked how many hours of leave he took during each of these years as a result of his service-connected disabilities. 3. Ask the Veteran's employer to complete an updated Request for Employment Information in Connection with Claim for Disability Benefits, VA Form 21-4192. The employer must further asked to summarize the Veteran's responsibilities in performing his tour guide position. Finally, the employer must be asked for the annual totals, from 2007 through 2014, of the Veteran's annual salary, as well as all benefits, including housing; and list the total number of hours of leave taken due to the Veteran's disability. 3. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative sh4ould be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. A. BANFIELD 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) (2017).