Citation Nr: 20022087 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 11-22 965 DATE: March 30, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 21, 2011 is remanded. REASONS FOR REMAND This matter was most recently before the Board of Veterans’ Appeals (Board) in January 2018. At that time, the Board denied entitlement to TDIU prior to October 21, 2011. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court issued a memorandum decision vacating the Board’s January 2018 decision. The matter has now been returned to the Board for further consideration. The Veteran appeared at a hearing before the undersigned in January 2017. The Board finds additional development is necessary to ensure its decision is fully informed on the material issue of whether the Veteran’s employment prior to October 21, 2011 constitutes “employment in a protected environment” as contemplated by 38 C.F.R. § 4.16(a). The Board notes 38 C.F.R. § 4.16(a) indicates “marginal employment shall not be considered substantially gainful employment” for the purposes of establishing entitlement to TDIU. This regulation further indicates “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.” As explained in its January 2018 decision, the Board finds the Veteran’s employment prior to October 21, 2011 cannot be considered marginal employment on an income-driven basis because his annual income exceeded the poverty threshold for one person during this period. However, “[m]arginal 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). The Veteran has specifically asserted the accommodations made by his employer prior to his removal from federal service in May 2013 warrant a finding of marginal employment, on a facts found basis, because the accommodations were unreasonable and/or excessive. This specific aspect of the Veteran’s claim for increased compensation has not been subject to development in the past; therefore, the Board finds additional efforts are necessary to ensure compliance with VA’s duty to assist. The matter is REMANDED for the following action: (Continued on the next page)   1. Ask the Veteran to submit a statement and/or any evidence he may have relevant to the issue of whether his employment prior to October 21, 2011 was employment in a protected environment, to include, but not limited to, evidence regarding whether the accommodations made by his employer were unreasonable and/or excessive. 2. Request a statement from the Veteran’s former employer addressing whether the accommodations it made for the Veteran from his initial September 2007 notice of potential removal from federal service until his actual removal from federal service in May 2013 were available to other employees or were considered unreasonable and/or excessive at any point prior to his removal from federal service in May 2013, and, if so, the approximate date the accommodations were considered unreasonable and/or excessive. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.