Citation Nr: 21001372 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 11-20 729 DATE: January 7, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 through May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge; the hearing transcript has been associated with the record. In a February 2018 decision, the Board found that the issue of entitlement to a TDIU rating was raised during the course of the Veteran’s increased rating claim for service-connected posttraumatic stress disorder (PTSD), pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). For the reasons below, the Board finds that another remand is warranted before adjudication of the Veteran’s claim for a TDIU rating. For purposes of entitlement to TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. Generally, marginal employment 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 (b). Marginal employment may also be held to exist on a “facts found basis” even when earned annual income exceeds the poverty threshold, including but not limited to “employment in a protected environment such as a family business or sheltered workshop.” 38 C.F.R. § 4.16 (b). The evidence of record demonstrates that throughout the appeal period, the Veteran has worked for a family-owned HVAC business. Although the Veteran appears to have been employed full-time for the majority of the appeal period, more information is necessary to determine if the Veteran is employed in a protected environment. Additionally, the Veteran was unemployed for periods of time, to include at least once as a result of a disagreement with his brother, who also works for the family-owned business; however, the time periods are unclear based on the evidence of record. Furthermore, as of the most recent VA examinations in February 2020, the Veteran has been working for Ashland Furnace Company as an HVAC technician for about three months and it is unclear to the Board whether this company is the Veteran’s family-owned business or a new job the Veteran obtained. Accordingly, more information is necessary to evaluate whether the Veteran’s employment is substantially gainful or whether he may be employed in a protected environment. The Board notes that the RO properly sent a VCAA notice letter, as well as enclosed the relevant VA Forms, to the Veteran for his TDIU claim in February 2020 pursuant to the February 2018 Board remand directives. The Veteran did not return any information in response to this request. Since the information is needed to make a proper determination on entitlement to a TDIU, the issue is being remanded to provide the Veteran another opportunity to submit information relevant to his claim on appeal. The Veteran is notified, however, that although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering and presenting evidence relevant to his claim. Woods v. Derwinski, 1 Vet. App. 190 (1991). The matter is REMANDED for the following action: 1. Send the Veteran another notification letter with respect to his claim for entitlement to a TDIU. The letter should include a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a VA Form 21-4142, Authorization and Consent to Release Information to VA, for completion and return to VA. 2. Thereafter, complete any necessary development in view of the Veteran’s response to the above notification letter, to include the scheduling of any additional VA examinations and/or referral to the Director of Compensation and Pension Services for extraschedular consideration if deemed warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.