Citation Nr: 20031545 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 19-21 214 DATE: May 5, 2020 ORDER The termination of a total disability rating based on individual unemployability (TDIU) was improper; thus, restoration of the TDIU from October 1, 2018, the date of the termination, is granted. FINDING OF FACT There was no clear and convincing evidence that the Veteran had been capable of more than marginal employment at the time his TDIU was terminated. CONCLUSION OF LAW The termination of TDIU, effective October 1, 2018, was not proper, and the criteria for restoration of TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.343, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1999 to January 2000, from December 2003 to November 2004, and from October 2005 to November 2008. Entitlement to a restoration of TDIU. The Veteran contends that his TDIU should not have been terminated in the July 2018 rating decision on appeal. “The circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the VA Secretary.” Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). In reducing a rating of 100 percent service-connected disability based on individual unemployability, specifically, the provisions of 38 C.F.R. § 3.105(e) are for application, but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343(c). In this instance, the outcome of the Veteran’s appeal turns on whether actual employability had been established. Thus, the Board will not discuss further the due process requirements laid out in 38 C.F.R. § 3.105(e). Under 38 C.F.R. § 3.343(c)(1), the reduction of a rating of 100 percent service-connected disability based on individual unemployability must be based on a determination that actual employability is established by clear and convincing evidence. The “clear and convincing” standard requires that capacity for work be proven to a “reasonable certainty,” but not necessarily be “undebatable.” The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan v. West, 13 Vet. App. 48, 55 (1999); Olson v. Brown, 5 Vet. App. 430, 434 (1993). For the purpose of the reduction of a TDIU rating, actual employment is not synonymous with actual employability. A finding of “actual employability” under 38 C.F.R. § 3.343(c)(1) must encompass a finding that the Veteran is no longer unemployable-that is, is no longer “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” under 38 C.F.R. § 4.16(a). Historically, the Veteran was granted entitlement to TDIU for his service-connected PTSD in a February 2010 rating decision, effective January 7, 2009. The evidence relied on to support the TDIU grant was VA Form 21-8940, Application for Increased Compensation Based on Unemployability (dated January 27, 2010) and a January 2010 lay statement from the Veteran. In a March 2017 rating decision, the Agency of Original Jurisdiction (AOJ) proposed to discontinue entitlement to TDIU because VA did not receive a VA Form 21-4140 Employment Questionnaire, to verify his employment status. In a July 2018 rating decision, the AOJ discontinued the Veteran’s TDIU, effective October 1, 2018 due to the Veteran not returning VA Form 21-4140. The Veteran timely filed a notice of disagreement (NOD). In a June 2019 statement of the case, the AOJ determined that TDIU was not warranted. The evidence relied on was an uncompleted Form 21-4140 (dated April 29, 2017), June 2017 and July 2018 rating decisions, July 2017 VA letter regarding due process rights, NOD, and a June 2019 Counseling Record for Vocational Rehabilitation. In the June 2019 Counseling Record, the Veteran reported working as a food runner from April 2017 to present. He stated that his condition was stable, as he received counseling from the VA medical center, attended AA meetings, and took prescribed medication. The Vocational Rehabilitation Counselor determined that the Veteran “does not meet the criteria for an employment handicap because he has overcome the impairments to employability as he is currently employed or qualifies for employment that is consistent with his abilities, aptitudes, and interests.” In the Veteran’s June 2019 SOC, the AOJ relied on the June 2019 report when terminating the Veteran’s TDIU. However, the Board finds that clear and convincing evidence has not been shown to determine that the Veteran was actually capable of obtaining and maintaining substantially gainful employment. As stated above, it must be determined that the Veteran is no longer “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” While the Veteran is currently employed, his employment constitutes marginal employment, as he works only 16 hours per month and his highest gross earnings per month is $250.00, making approximately $3000 per year. See July 2019 VA 21-4140. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, 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 as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Here, the Veteran’s annual income is well below the poverty threshold, which constitutes marginal employment. Additionally, a March 2016 VA examination for PTSD was before the RO at the time of the July 2018 rating decision. The examiner determined that the Veteran had total social and occupational impairment. The Veteran’s symptoms consisted of depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; neglect of personal appearance and hygiene intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner also determined that the Veteran’s symptoms had worsened since his initial examination in 2009. Upon careful consideration of the evidence for and against the Veteran’s actual employability, the Board finds there was no clear and convincing evidence that the Veteran had been capable of more than marginal employment at the time his TDIU was terminated. Thus, the criteria for terminating his TDIU were not met and restoration of TDIU is granted from October 1, 2018. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adeleke, Associate 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.