Citation Nr: 21071545 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-27 254 DATE: November 30, 2021 ORDER Entitlement to an increased rating for left lower extremity, atherosclerotic arterial occlusive disease, currently rated noncompensable from May 17, 2011 and 20 percent disabling from February 8, 2021 is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) from May 17, 2011 until September 29, 2014 is denied. Entitlement to a TDIU from May 14, 2020, but no earlier, is granted, subject to the laws and controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a TDIU from September 29, 2014 until May 14, 2020 is remanded. FINDINGS OF FACT 1. For the period from May 17, 2011 until February 8, 2021, the Veteran's left lower extremity atherosclerotic arterial occlusive disease did not more nearly approximate claudication on walking more than 100 yards, and diminished peripheral pulses or ankle/brachial index of 0.9 or less. 2. From February 8, 2021, the Veteran's left lower extremity atherosclerotic arterial occlusive disease did not more nearly approximate in claudication on walking 25 and 100 yards on a level grade at 2 miles per hour, and trophic changes or ankle/brachial index of 0.7 or less. 3. From May 17, 2011 until September 29, 2014, the Veteran was incarcerated for conviction of a felony. 4. From May 14, 2020. the evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased compensable rating for left lower extremity atherosclerotic arterial occlusive disease, currently rated as noncompensable from May 17, 2011 until February 8, 2021 and 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, DC 7114. 2. From May 17, 2011 until September 29, 2014, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5313(c); 38 C.F.R. §§ 3.341(b), 4.16. 3. From May 14, 2020, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1981 to July 1984 and from January 2003 to August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 and May 2021, the Board remanded these issues. The development has been completed to the extent possible, and the case has returned to the Board. The Board has recharacterized the TDIU claim by time periods. This claim dates to May 17, 2011. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The purpose of the recharacterization is to resolve the TDIU claim for periods in which the current evidence is sufficient for adjudication without prejudice to the Veteran. Duty to notify and assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The issues adjudicated in the instant decision are also subject to compliance with the January 2019 and May 2021 Board remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran, nor his representative have identified any specific notification or assistance error in connection with this appeal, and none has been identified by the Board. The January 2019 Board remand, in pertinent part, instructed the agency of original jurisdiction (AOJ) to obtain updated VA treatment records and updated VA examination for service-connected atherosclerotic occlusive disease of the lower extremities with a full description of disability and its effect on occupational functioning and activities of daily living. The May 2021 Board remand instructed that a supplemental statement of the case (SSOC) be issued for the increased rating claim and entitlement to TDIU prior to October 29, 2020. The AOJ obtained updated VA treatment records through July 2021. It also obtained January 2020 and February 2021 VA-contract Artery and Vein Conditions examinations by appropriately qualified clinicians. As discussed below, these VA-contract examination reports are sufficiently detailed about the disability. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Further delay to obtain more information would not benefit the Veteran. The AOJ readjudicated both issues in an August 2021 SSOC with consideration to the newly received evidence. This development substantially complies with the January 2019 and May 2021 remands. Id. For the above state reasons, the Board finds that appellate adjudication for the increased rating claim and portions of the TDIU claim may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Left lower extremity artery disease Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating to warrant such a rating, see 38 C.F.R. § § 4.7, 4.21, those regulations do not apply where, as here, the Diagnostic Code (DC) at issue employs the conjunction "and" and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's service-connected left lower extremity artery disease is currently evaluated as noncompensable from May 17, 2011 and 20 percent disabling from February 8, 2021 under DC 7114. 38 C.F.R. § 4.104, DC 7114. Under DC 7114, a 20 percent rating is warranted for disability manifesting as claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. A rating of 40 percent is warranted for disability manifesting as claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. A rating of 60 percent is warranted for disability manifesting as claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. The maximum rating of 100 percent is warranted for disability manifesting as ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. Id. The ankle/brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Id., Note (1). These evaluations are for involvement of a single extremity. If more than one extremity is affected, each extremity is to be evaluated separately. Id., Note (3). Where the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Turning to the evidence, VA received an increased rating claim for atherosclerotic occlusive disease on May 17, 2011. The claims period thus extends to May 17, 2010 to include the one year look back period for increased rating claims. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). July 2010 private medical records reported the Veteran's complaints about numbness affecting his hands and legs. High blood pressure was reported. The Veteran acknowledged not taking his blood pressure medications correctly. In an August 2011 lay statement, the Veteran contended that his artery disease caused severe leg cramps and numbness. See VA Form 21-4138, August 2011. October 2011 private medical records showed that the Veteran was referred for insulin dependent diabetes (IDDM) and neuropathy with a history of blisters. He complained about increased pain, instability, edema and difficulty walking. Physical examination corresponded to these symptoms. Orthotics were recommended. June 2012 private medical records included complaints about severe bilateral foot pain and burning with prolonged standing, squatting and bending. Slight edema was found around the feet. The Veteran had controlled blood sugar readings. The clinician assessed IDDM and diabetic neuropathy. September 2013 private medical records reported the Veteran's feet had callouses and nail fungus. The clinician noted recent blood sugar readings and assessed IDDM, hypertension, toenail fungus and toe callous and sleep apnea. October 2014 VA primary care records showed that the Veteran visited to establish care. His medical history included sleep apnea, diabetes, hypertension and dyslipidemia. He reportedly rode a bicycle for four to five miles per day. Physical examination was within normal limits. The clinician assessed uncontrolled hypertension and diabetes, among other conditions. November 2014 VA neuropathy clinic records reflected that the Veteran had thickened toenails, normal pedal pulses and sensation for both feet. Recent laboratory findings were reviewed. The clinician assessed diabetes with above goal blood sugar and hypertension controlled with medication. January 2015 VA treatment records included reports that the Veteran regularly exercised with a bicycle and walked while running errands. In May 2015, the Veteran had a VA-contract Diabetic Sensory-Motor Peripheral Neuropathy examination. The physician diagnosed diabetic peripheral neuropathy with a 2003 to 2004 onset. He cited reported numbness and tingling affecting all extremities around the time the Veteran was diagnosed with diabetes in 2003 or 2004. The Veteran had recurrent tingling and numbness to his feet. Neurological evaluation, in pertinent part, showed left lower extremity with mild intermittent pain, paresthesia and/or dysesthesias, and numbness. Strength and reflexes were normal. Light touch sensation was decreased for the left foot. No trophic changes were observed. The physician assessed mild incomplete paralysis of the left sciatic nerve. He furnished a medical opinion relating peripheral neuropathy to diabetes. August 2017 VA primary care records showed that the Veteran reported doing well. He walked briskly without assistance. Extremities were without edema and had positive pulses. The clinician assessed controlled hypertension and uncontrolled diabetes based on a recent blood sugar test from last month, among other medical conditions. An accompanying diabetic foot examination showed that the Veteran had normal pulses and sensation in his left foot. May 2018 VA primary care records reported that the Veteran had a recent diabetes related hospitalization and needed adjustments to his medications. The clinician observed that the Veteran had a history of medication noncompliance. Currently, the Veteran reported left shoulder and bilateral knee pain. Clinical evaluation did not reveal peripheral edema. The Veteran exhibited a steady gait and full range of motion for his extremities. Muscle strength was normal. April 2019 VA primary care records noted that elevated blood sugar from a February 2019 report. Physical examination was within normal limits. The clinician assessed uncontrolled diabetes, partial hypertension control and elevated creatinine. An accompanying diabetic foot examination showed that the Veteran had normal pulses and sensation in his left foot. December 2019 VA primary care records reported that the Veteran was recently treated for right lower extremity deep vein thrombosis (DVT) and pulmonary embolism. The Veteran denied easy bruising or bleeding. Physical evaluation was within normal limits. In January 2020, the Veteran had a VA-contract artery and vein examination with a nurse practitioner (NP). She diagnosed bilateral lower extremity arterial occlusive disease. The Veteran was regularly monitored for heart disease and limited his activities. The NP assessed peripheral vascular disease (PVD). Currently, the Veteran had claudication on walking more than 100 yards for his left lower extremity. The NP did not report diminished peripheral pulses, trophic changes, persistent coldness, ischemic limb pain at rest or ischemic ulcers for the left lower extremity. The Veteran regularly used a walker due to peripheral artery disease (PAD) and recent DVT. The NP reported that she was unable to perform ankle/brachial index testing due to DVT. She stated that PAD would impact prolonged walking due to pain and lack of endurance. She also reported left lower peripheral pulses were normal. February 2020 VA neurology clinic records reported that the Veteran denied claudication. He exhibited full left lower extremity muscle strength without any gross sensory deficit. March 2020 VA primary care records showed that the Veteran had a consultation to review his hypertension medication regimen. Physical examination was within normal limits. Recent laboratory results were reviewed. The clinician adjusted the Veteran's hypertension medication. An accompanying diabetic foot examination showed that the Veteran had normal pulses and sensation in his left foot. May 2020 VA primary care records included a telephone consultation with the Veteran. The Veteran was stable and interested in knowing when his heart procedure would be scheduled. He reported controlled blood sugar and blood pressure. He had recently been hospitalized with a CHF diagnosis. The clinician recommended anticoagulation for one year following the December 2019 DVT. June 2020 VA treatment records reported that the Veteran denied lower extremity edema or claudication. However, he had been hospitalized for acute systolic congestive heart failure. Additional assessments included status post intracranial hemorrhage during hospitalization with high blood pressure, chronic kidney disease (CKD), diabetes with variable control, and DVT, among other medical conditions. On February 8, 2021, the Veteran had another VA-contract artery and vein examination with a physician. The physician diagnosed peripheral vascular occlusive disease and DVT, left leg with a 2021 onset. For post-phlebitic syndrome/ DVT, the physician reported left leg aching and fatigue with prolonged walking and standing. He noted the PVD history. Current symptoms included diminished peripheral pulses and trophic changes for the left lower extremity. The Veteran used a wheelchair on a constant basis. Ankle/brachial index testing was not performed. The physician reported that the left femoral, popliteal, dorsalis pedis, and posterior tibial pulses were absent. As to the Veteran's function, the physician reported that the Veteran was unable to care for himself and resided at an assisted living home. June 2021 VA emergency department records showed that the Veteran sought a medication refill. He continued to have abdominal pain and requested medication. He denied leg pain and leg swelling as problems. Physical examination showed peripheral circulation within normal limits, no gross deformity, or lower extremity edema. The physician assessed postoperative pain and asymptomatic hypertension. He dispensed medication. For the following reasons, a compensable rating from May 17, 2011 until February 8, 2021 and in excess of 20 percent from February 8, 2021 is not warranted. The Veteran has a complex medical history. He is additionally service-connected for coronary artery disease, hypertension, and vascular hemorrhage. He also has non-service connected medical disorders of diabetes mellitus, peripheral neuropathy, and chronic kidney disease. To the extent it is not possible to ascertain the effect of the service-connected disabilities from the non service-connected disabilities, the Board will apply the benefit of the doubt doctrine and attribute such effect to the service-connected disabilities. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability) As explained below, prior to February 8, 2021, the evidence does not show claudication with walking more than 100 yards and diminished peripheral pulse or ankle/brachial index of 0.9 or less for the left lower extremity. 38 C.F.R. § 4.104, DC 7114. The Board emphasizes that DC 7114 is successive with the criteria for the lower ratings encompass those for higher ratings, and that the specific criteria must be met to warrant a higher rating. Camacho, 21 Vet. App. at 366; Tatum, 23 Vet. App. at 155-56; 38 C.F.R. § 4.104, DC 7114. The Board has considered the Veteran's August 2011 statement about leg cramps to satisfy the first element, claudication with prolonged walking, for a compensable rating under DC 7114. See id. Ankle/brachial index is not reported in the evidence. Alternatively, the Board has considered whether diminished peripheral pulse, trophic changes or coldness for left lower extremity are shown. There are multiple clinical reports suggesting normal or observable pulses for the left lower extremity. (See VA treatment records from November 2014, August 2017, April 2019, and March 2020; January 2020 VA-contract examination). Multiple VA treatment records indicate that the Veteran ambulated normally. (See VA treatment records from October 2014, January 2015, August 2017, May 2018). There are no reports about left lower extremity trophic changes or coldness attributed to the left lower extremity venous disorder. Although the January 2020 VA-contract NP found claudication with prolonged walking, she specifically reported that the Veteran's left lower extremity pulses were normal and did not indicate that additional symptoms referenced in higher rating criteria under DC 7114 were observed. For these reasons, the Board finds that the service-connected left lower extremity venous disability does not meet all the criteria for a compensable rating prior to February 8, 2021. Camacho, 21 Vet. App. at 366; Tatum, 23 Vet. App. at 155-56; 38 C.F.R. § 4.104, DC 7114. From February 8, 2021, the evidence refers to left lower extremity trophic changes and absent peripheral pulses as associated with the service-connected left leg venous disability. The physician did not comment on associated claudication. It reasonable to infer that he did not do so because the Veteran was wheelchair bound and had other severe medical conditions that interfered with ambulation. The Veteran has not provided any recent specific report about claudication associated with the service-connected left leg venous disorder. Again, the Veteran has a complex medical history and other serious medical conditions that interfere with ambulation. The preponderance of the evidence does not show that the service-connected left lower extremity vein disorder, alone, results the requisite claudication for the next higher 40 percent rating. 38 C.F.R. § 4.104, DC 7114. Thus, the criteria for a 40 percent rating have been met during this period. For the foregoing reasons, the preponderance of the evidence is against a compensable rating from May 17, 2011 until February 8, 2021 and in excess of 20 percent from February 8, 2021 for left lower extremity, atherosclerotic arterial occlusive disease. The benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to a TDIU TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. In this case, the TDIU claim is part of an increased rating claim for service-connected left leg venous disability. See January 2019 Board decision and remand. The underlying increased rating claim dates to May 17, 2011. Therefore, the relevant date of TDIU claim is May 17, 2011. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The appeal period begins one year prior to this date. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. (a) From May 17, 2011 until September 29, 2014 As to the period from May 17, 2010 until September 29, 2014, 38 U.S.C. § 5313(c) states that VA "shall not assign to any veteran a [TDIU] of the veteran resulting from a service-connected disability during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony." See generally Philbrook v. Wilkie, 32 Vet. App. 342 (2020) (interpreting 38 U.S.C. § 5313(c)). 38 C.F.R. § 3.341(b) states "Incarcerated veterans. A total rating for compensation purposes based on individual unemployability which would first become effective while a veteran is incarcerated in a Federal, State or local penal institution for conviction of a felony, shall not be assigned during such period of incarceration." VA received notification from the state confirming that the Veteran was incarcerated for a felony from March 2005 until September 29, 2014. VA From 21-0820 Report of General Information from October 2015 also confirms that the Veteran was released on this date. As such, a TDIU from May 17, 2011 until September 29, 2014 is not warranted. 38 U.S.C. § 5313(c); 38 C.F.R. § 3.341(b). (b) From May 14, 2020 From May 14, 2020, the Veteran is service-connected for the following disabilities: obstructive sleep apnea (OSA), 50 percent; hypertension 40 percent; pseudofolliculitis barbae, 30 percent; onychomycosis, 30 percent; right lower extremity atherosclerotic arterial occlusive disease, 20 percent; right knee disability, 10 percent; left knee disability 10 percent; and various noncompensable disability ratings, to include coronary artery disease. He has a combined rating of 90 percent. The Board notes that the Veteran was subsequently service-connected for additional disabilities in August 2020, and these disabilities may be considered from their service connection effective dates. The Veteran's combined ratings meet the schedular TDIU rating criteria from May 14, 2020. 38 C.F.R. § 4.16(a). May 21, 2020 VA Social Work record showed that the Veteran was discharged for status post non-ST-segment elevation myocardial infarction (NSTEMI) and a hemorrhagic stroke. He was hospitalized on May 14, 2020 when he presented with shortness of breath and chest pain. The Social Worker confirmed that the Veteran lived in a group home and was independent with daily activities. He reportedly worked in construction on an irregular basis. May 21, 2020 VA neurology treatment records showed that the Veteran was recently treated for an acute event of left sided weakness. He had elevated blood pressure. CT brain scan revealed abnormalities. The neurologist indicated the brain bleeding was likely hypertensive in nature. He recommended continued blood pressure control. In August 2020, the Veteran filed formal TDIU claim (VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability). He reported that he last worked full time on May 15, 2020 and that he was too disabled to work full time on this date as well. He stated that his service-connected hypertension caused him to have a stroke. He had difficulty with use of the left side of his body. For the following reasons, the Board finds that from May 14, 2020, but no earlier, a TDIU is warranted. The Veteran's highest educational attainment is a high school diploma. He has occupational experience as a construction laborer and general labor. From May 14, 2020, the evidence is clear that the Veteran no longer worked due to a hypertensive stroke disability and did not resume his previous work as a construction laborer. Thus, he meets the threshold economic component in Ray, supra. of unemployment during this period. As to the non-economic TDIU component of physical capability in Ray, supra, the functional impairment from the service-connected heart disease and hypertension, in additional to the various other service-connected disabilities, affect a wide variety of physical occupational tasks. The Veteran had difficulty with left-sided movements and exertion. These limitations would interfere with the Veteran's ability to perform nearly any physical occupational task, such as manual labor or general construction labor. Ray, 31 Vet. App. at 73. Given the above, the Board finds that from March 1, 2014, the Veteran has severe physical limitations associated with service-connected lumbar spine disability, bilateral lower extremity radiculopathy, and bilateral knee disabilities. As to the non-economic mental capability in Ray, supra., the Veteran's pain attributable to his service-connected heart and musculoskeletal disorders pose some mental impairment in completing occupational tasks associated with construction labor. It would interfere with his ability to concentrate on work tasks. When considering the Veteran's work and education history and physical and mental impairments due to various service-connected disabilities, the evidence is at least in a state of relative equipoise as to whether from May 14, 2020, the Veteran is unable to secure and follow a substantially gainful occupation within the meaning of the applicable regulation. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"); 38 C.F.R. § 4.16. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities from May 14, 2020 precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from May 14, 2020 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to a TDIU from September 29, 2014 until May 14, 2020 is remanded. There is conflicting evidence about the Veteran's employment during this period. Although the Veteran filed a formal TDIU claim in September 2015 (VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability), reports found in VA treatment records indicate that the Veteran wanted to work and started work compensation therapy with the goal of obtaining gainful employment. (See March 2015, August 2015 and November 2015 VA treatment records). In October 2017, VA received paystubs indicating that the Veteran was regularly employed by a private construction company but are unclear whether his annual income exceeded the applicable poverty threshold. The most recent reported job was as a part time construction laborer in May 2020. Then, in August 2020, the Veteran filed another formal TDIU claim and listed May 15, 2020 as the date he last worked and became too disabled to work. "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. Faust v. West, 13 Vet. App. 342, 355-56 (2000). Marginal employment, however, is not considered to be substantially gainful employment. 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). For this period, the evidence reflects that the Veteran's employment might be marginal, but more information is needed to determine the Veteran's earned income during this period. Therefore, a remand is necessary with instructions for the Veteran to provide reports about his work history and annual earned income in as much detail as possible covering the period from September 29, 2014 until May 15, 2020. This matter is REMANDED for the following action: Furnish the Veteran another VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and instruct him to provide as much detail as possible about his work history and annual earned income for the period from September 29, 2014 until May 15, 2020. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.