Citation Nr: 1820105 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-31 823A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Mike Ferry, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A Notice of Disagreement (NOD) was filed in June 2013. A Statement of the Case (SOC) was issued in July 2014. A substantive appeal (VA Form-9) was filed in September 2014. In April 2017, the Veteran testified at a personal hearing held at the St. Louis, Missouri RO before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. FINDING OF FACT The record evidence establishes that the Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (2012); 38 C.F.R. §§ 3,102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here with respect to the Veteran's claim, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA with respect to the claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VA Gen. Coun. Prec. 57 Fed. Reg. 49, 747, #16-92 (1992). Factual Background and Analysis The Veteran contends that he is unemployable due to his service-connected major depressive disorder. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.17(a). Marginal employment shall not be considered 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) (2017). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by non-service connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Here, the Veteran is service-connected for major depressive disorder, evaluated as 70 percent disabling. As such, the Veteran meets the threshold criteria for a TDIU. See 38 C.F.R. §§ 4.16(a). The remaining inquiries are whether the Veteran's seasonal, temporary maintenance employment was marginal and whether he is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. In February 2014, the Veteran filed an Application for Increased Compensation Based on Unemployablity. The Veteran claimed that he became too disabled to work in February 2013. The Veteran was employed as a seasonal, temporary employee for Regency Temp Agency from June 2012 to February 2013. The Veteran earned $8.00 an hour and approximately $1,400 per month. During the April 2017 hearing, the Veteran testified that his last full time employment was 15 years ago. The Veteran testified that did seasonal, temporary maintenance work for the St. Patrick's Center for Homeless People for approximately one year. The Veteran testified that he worked two days- one week at a time with a 6-7 month break between assignments. The Veteran testified that he earned $7.00 per hour, and at best, approximately $200-$300 per month. According to the Veteran, he completed the 10th grade, earned a GED, and attended a community college program in 2012-2013. The Veteran testified that he has never had steady employment and was employed as a short order cook, employed with a "floor company," and has performed temporary maintenance work since separation. The Veteran is currently unemployed. The Veteran last worked on a seasonal, temporary basis in 2013 and earned $200-$300 a month, at best, with an estimated annual income of $3,600.00. The Veteran's annual income did not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a)(2017). In Faust v. W., 13 Vet. App. 342 (Feb. 2000), the Court of Appeals for Veterans Claims (Court), found that 38 C.F.R. § 4.16(a) "does not define what 'substantially gainful employment' is;' [however], it does provide that 'marginal employment' is not substantially gainful employment and thus implies that employment that is more than marginal may be considered to be 'substantially gainful employment'". See Moore (Robert) v. Derwinski, 1 Vet . App. 356, 358 ("the ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). As such, the Veteran's seasonal, temporary maintenance work is considered marginal. The Board finds that a preponderance of the evidence establishes that a TDIU is warranted and the appeal is granted. ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs