Citation Nr: 21064048 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-04 386 DATE: October 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to September 21, 2016, is granted, effective July 11, 2012. FINDING OF FACT Effective the date of the Veteran's claim for a TDIU, July 11, 2012, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met effective July 11, 2012. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1980 to July 1983. This matter is before the Board of Veterans' Appeal (Board) on appeal from an October 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). A total disability rating based on individual unemployability due to service-connected disabilities (TDIU). VA will grant a TDIU when the evidence shows that the veteran is precluded, because of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a TDIU claim is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. Regulations provide that if a veteran is service connected for one disability, it must be rated as 60 percent disabling or more. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Over the course of the appeal period here, the Veteran has five service-connected disabilities; his combined disability rating is at least 90 percent. As such, the Veteran meets the preliminary schedular criteria for consideration for entitlement to a TDIU. 38 C.F.R. § 4.16. Further, the Veteran has presented evidence that his service-connected disability precludes him from gainful employment. The Veteran contends that the cumulative effect of his service-connected disabilities precludes him from gainful employment. The Veteran contends that his service-connected psychology condition and TBI with residuals greatly impacted his ability to sustain gainful employment. Indeed, VA has agreed with this assessment generally, and such a finding formed the basis for the grant of a TDIU in this case. Ultimately, the question of whether an earlier effective date for the grant of the Veteran's TDIU turns on whether his employment prior to September 21, 2016 was marginal. Pursuant to the applicable regulation, "marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. To determine whether employment is marginal, the Board must compare the Veteran's income to the amount established by the Census Bureau as the poverty threshold for one person. Id. The records here reflect that the Veteran was employed by VA until July 2012; there is no evidence that this employment was marginal, or that it was in a protected environment. Indeed, the Veteran's employment with VA ended after the point that VA determined in May 2012 that it could not provide reasonable accommodations to the Veteran to allow him to remain in his old position. From that point forward, the records also reflect that the Veteran remained employed at a grocery store until September 2016. The RO based its denial of an earlier effective date on the fact that the Veteran was still employed from 2012 to 2016. The RO did not, however, determine whether the Veteran's employment from this period was substantially gainful. Following the Board's remand, the Veteran submitted evidence regarding his income during these years. A review of these records shows that the Veteran never earned more than roughly $6,000 in the period from 2012 to 2016 from his job at the grocery store. The Board does not need to cite directly to the statistics from the census bureau to establish that this income is lower than the poverty threshold. It is, and nothing more needs to be said. Quite simply, despite the fact that the Veteran remained "employed," the evidence of record shows that this employment was marginal, and marginal employment does not preclude a grant of a TDIU. Considering the Veteran's service-connected disabilities, the impairments they presented, and his only marginal employment, the Board finds that the criteria for a TDIU were met as of July 11, 2012. Before concluding, the Board observes that there is still some confusion about the date that the Veteran submitted his claim for a TDIU, and the date which he stopped working at VA. While the exact date may not be clear, all of the evidence of record suggests that it was in July 2012. Because VA pays benefits in arrears and does not make partial payments, whether the Board sets the date as of July 1 or July 31, the ultimate effect is the same. Because July 11 appears to be the date that the Veteran's application for a TDIU was submitted, that date forms the basis for the Board's grant herein. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.