Citation Nr: 21061833 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-12 164A DATE: October 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran failed to provide necessary cooperation in the production of evidence supporting the Veteran's employment being marginal during the claim period. 2. Evidence sufficient to support the Veteran's employment being marginal during the claim period is not presented. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107(a); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Air Force from October 1969 to August 1973, including service in Vietnam. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a March 2018 Board of Veterans' Appeals (Board) hearing. A transcript is of record. In June 2021, the Board remanded the matter. Entitlement to TDIU Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain a substantially gainful occupation as a result of either: (1) a single service-connected disability ratable at 60 percent or more; or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough; rather, the ultimate question is whether the Veteran's combined service-connected disabilities prevented him from being capable of the mental and physical acts required by employment. 38 C.F.R. § 4.16; Bowling v. Principi, 15 Vet. App. 1 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). By a January 2019 decision, the Board denied a higher initial rating for diabetes mellitus, type II, with erectile dysfunction, than the 20 percent already assigned. The Board then remanded appealed claims for higher initial ratings for diabetic peripheral neuropathy, rated 10 percent disabling for each lower extremity. The case returned to the Board in June 2021, when the Board, by a June 2021 decision, denied claims for higher initial ratings than the 10 percent assigned prior to September 27, 2019 for right and left lower extremity peripheral neuropathy, and granted higher initial ratings of 20 percent each for right and left lower extremity peripheral neuropathy effective September 27, 2019. The Board then expanded the claim to include entitlement to TDIU based on the disabilities the subject of appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as implicitly raised by the evidence including findings of impaired functioning upon VA peripheral nerves examination in September 2019 as well as by the Veteran's testimony at his March 2018 hearing that he was currently working part-time and had cut back on his hours due to his reduced capacity for work functioning. The Board then remanded the Rice TDIU claim for additional development including obtaining a statement from the Veteran detailing his employment and earnings during the claim period. As the Board then noted, part-time employment was not necessarily marginal employment or employment for which entitlement to TDIU may be sustained. For purposes of the TDIU claim, 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, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342, 355-56 (2000) ("substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history). Marginal employment may also be held to exist on a facts-found basis, including when employment resulting in earned annual income exceeding the poverty threshold for one person was performed in a "protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(a). The Veteran has not alleged that he is employed in a sheltered work environment, and hence whether his part-time employment reflects marginal employment is substantially dictated by earnings from that employment. An answer to the question of whether the Veteran's reduced work hours resulted in marginal employment, including based on income earned by such employment, is thus necessary for the Board's adjudication of the TDIU claim. 38 C.F.R. § 4.16(a); Faust, 13 Vet. App. at 355-56. Pursuant to the Board's remand instruction, the VA Regional Office (RO) on July 1, 2021 issued a letter to the Veteran requesting employment information for the claim period, instructing the Veteran to complete of a VA Form 21-4192 for each of his employers during the claim period. That form instructed the Veteran to state earnings from the employment. The letter informed the Veteran that he had 30 days to reply, after which VA may decide on his TDIU claim. The Veteran was thus provided adequate notice, with assigned deadline, of the requirement for him to provide employment information in furtherance of his TDIU claim. 38 U.S.C. §§ 1155, 5103(a). The VA thus fulfilled its duty, absent further cooperation from the Veteran, in seeking to obtain private employment information, inclusive of earnings data, in furtherance of the TDIU claim. 38 U.S.C. § 5103A (a), (b). The Veteran failed to submit the requested VA Forms 21-4192 and failed to otherwise provide requested earnings information. The Veteran provided no reply whatsoever. Absent such requested information, the Board cannot but conjecture whether or not the Veteran's employment has been marginal during the claim period. It is true that the Board may not reject the TDIU claim without producing evidence, as distinguishing from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). However, the Board similarly may not grant the claim absent sufficient evidence in support. The Board rather must adjudicate his claim with the evidence of record. See 38 C.F.R. § 3.655. From a non-economic perspective, the Board does not here question that the Veteran's diabetes mellitus and peripheral neuropathy into the lower extremities, which were the subject of appeal, have resulted in some interference with employment capacity, and the ratings assigned for these disabilities are meant to reflect this. 38 C.F.R. § 4.1. However, the Veteran ultimately bears some burden of evidence production. 38 U.S.C.§ 5107 (a); see Cromer v. Nicholson, 455 F.3d 1346, 1350 (Fed. Cir. 2006) ("[T]he general evidentiary burden in veterans' benefit cases . . . requires that 'a claimant has the responsibility to present and support a claim for [VA] benefits.'"); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding that the duty to assist is not a one-way street). In this case, that burden includes providing sufficient evidence of employment status and earnings during the claim period to support the TDIU claim. The Board cannot obtain that employment information absent the Veteran's consent and cooperation. Accordingly, based on the Veteran's failure to provide evidence sufficient to support marginal employment during the claim period, the claim for TDIU must be denied. 38 U.S.C. §§ 5103(a), 5107(a); 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Faust v. West, 13 Vet. App. at 355-56. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.