Citation Nr: 21066370 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-60 798 DATE: October 29, 2021 ORDER Entitlement to a TDIU from May 24, 2011 to November 29, 2014, for substitution or accrued benefits purposes, is denied. FINDING OF FACT The most probative evidence reflects that the Veteran's service-connected disabilities did not preclude him from securing and maintaining a substantially gainful occupation from May 24, 2011, to November 29, 2014. CONCLUSION OF LAW The criteria for entitlement to a TDIU from May 24, 2011, to November 29, 2014, for substitution or accrued benefits purposes, have not been met. 38 C.F.R. § 4.16 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1966 to April 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On the Veteran's August 2015 Notice of Disagreement (NOD), the Veteran indicated that his service-connected posttraumatic stress disorder (PTSD) in particular, negatively impacted his employability, raising the matter of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Although this issue was not separately adjudicated by the AOJ prior to the Veteran's death, it is considered part and parcel of his appealed increased rating PTSD claim. By virtue of the Board's partial allowance of an increased initial evaluation for his service-connected acquired psychiatric disabilities, the Veteran met the schedular criteria for a TDIU at all times during the period remaining on appeal, which is from May 24, 2011, to November 29, 2014. Of note, the Veteran unfortunately died in June 2016, during the pendency of the present appeal, resulting in his surviving widow becoming the appellant, after her application to be substituted for her husband regarding the current appeal was granted by the Agency of Original Jurisdiction (AOJ). The appellant testified at a Board hearing before the undersigned Veterans Law Judge in October 2018. A copy of the transcript has been associated with the record. The Board further notes that the appellant's appeal for a TDIU, for substitution or accrued benefits purposes, was bifurcated by the Board in its February 2021 decision, granting TDIU from February 12, 2016, to April 18, 2016, and remanding for further evidentiary and procedural development, for the initial appeal period of appeal, from May 24, 2011, to February 11, 2016. The appeal for a TDIU from April 19, 2016, to June 3, 2016, was rendered moot and dismissed, as the AOJ granted service connection for lung cancer and nodal metastatic in a May 2017 rating decision, with each evaluated 100 percent disabling, and established special monthly compensation (SMC) at the housebound level under 38 U.S.C. § 1114 (s), awards effective from April 19, 2016. In May 2021, the Board denied the Veteran's claim for a TDIU from November 30, 2014 to February 11, 2016 and remanded the aspect of the Veteran's TDIU claim between May 24, 2011 and November 29, 2014, for further evidentiary development. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38C.F.R. §4.16(a). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38C.F.R. §4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340 (a). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38C.F.R. §§3.341, 4.16, 4.19. Marginal employment is not considered to be substantially gainful employment. 38C.F.R. §4.16 (a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id; see also Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html(last visited December 2020). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income does not exceed the poverty threshold. 38C.F.R. §4.16 (a). This includes, but is not limited to, his or her employment in a protected environment such as a family business or sheltered workshop. Id. As such, "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). 1. Entitlement to a TDIU from May 24, 2011, to November 29, 2014, for substitution or accrued benefits purposes, is denied. The Board last remanded this matter in May 2021 because the evidence of record regarding the Veteran's employment status between May 24, 2011, to November 29, 2014, was unclear, and that more information was needed to determine whether the Veteran was unemployed during any specific time during this appeal period due to his service-connected disabilities or engaged in marginal employment. This was following the Board's prior remand in February 2021 for the same requested information. As had been previously noted, based on the current evidence of record, it appears that the Veteran was working for most periods during this appeal period, but the facts are vague with respect to what type of job he did and what his earnings were, which was the basis for the Board's prior remand. For instance, in August 2011, the Veteran reported doing "odd jobs" while awaiting to receive his Supplemental Security Income (SSI) due in September 2011. Further, in a September 2013 Veteran Readiness and Employment (VR&E) report, the Veteran reported social security earnings of $2,232 monthly, stating that he was able to meet his financial obligations, but was seeking to earn more income to live more comfortably. See, page 70 VR&E (received February 2017). His Social Security records also reflect that the Veteran received $2,232 monthly in 2012, $2,273 monthly in 2013 and $2,312 monthly in 2014. See, SSA Profile and Benefit Data (received November 2020). Following the Board's latest remand in May 2021, the appellant then submitted an updated VA Form 21-8940 Application for Increased Compensation Based on Unemployability, which was received by the RO on August 2, 2021, reporting the Veteran's periods of employment for 1978 to 1998, 1998 to 2003, and 2015, respectively, which was repetitive and not pertinent to the Veteran's current appeal. No specific information for the requested period of appeal, from May 24, 2011, to November 29, 2014, was provided. The appellant included a general statement that the Veteran had training as a janitor at the VA from 2014 to 2015. Employment Adjustment Allowance authorization reflects that from April 18, 2014, to May 19, 2014, and from May 20, 2014, to June 18, 2014, the Veteran received authorized payments under the Veteran's Readiness and Employment (VRE) program. He was placed on job readiness status, effective April 19, 2014. Further, the Veteran was noted to have been enrolled in a six-month nonpaid work experience (NPWE) plan for case management, subsistence allowance, job readiness, job placement monitoring and performance/attendance tracking from July 2014 to January 2015, also as part of the Department of Veteran's VRE program. Although a May 2013 VA Disability Benefits Questionnaire (DBQ) PTSD examination report reflect that the Veteran was unemployed at that specific time, the examiner stated this could be attributed to a number of factors unrelated to his service-connected PTSD disability, including bad business decisions and the economy. Moreover, there is no evidence on record to support that the Veteran's service-connected disabilities, particularly his PTSD, precluded him from securing and maintaining a substantially gainful occupation from May 24, 2011, to November 29, 2014, as the appellant contends. Prior to his death, the Veteran did not specifically allege, nor has the appellant provided evidence to show that any period of employment during the specific period on appeal was marginal in nature. Furthermore, in its February 2021 remand, the Board specifically requested that the AOJ contact the appellant and request that she identify any outstanding evidence pertinent to the Veteran's employment status from May 2011 to February 11, 2016, to include evidence showing that the Veteran's occupation may have been less than substantially gainful at any point during that period. The appellant did not provide any specific information to support this aspect of her claim at that time. The appellant was given a final opportunity to provide same, more specifically from May 24, 2011, to November 29, 2014, in the Board's May 2021 remand, prior to the Board's adjudication of the TDIU claim for this period, but she has not done so. While the Board is sympathetic to the appellant's claim, the Board has no authority to grant claims on an equitable basis; rather is constrained to follow specific provisions of law. 38 U.S.C. § 7104 (c). The Board emphasizes, however, that the denial of this period of the Veteran's TDIU claim for this period does not in any way diminish the Veteran's distinguished service, which is duly acknowledged and appreciated. Therefore, based on the foregoing, and the totality of the evidence of record, the Board finds that the weight of evidence does not show the requirement for a TDIU from May 24, 2011, to November 29, 2014 have been met. As such, the benefit of the doubt rule does not apply, and the appellant's remaining claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.