Citation Nr: 21071841 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-28 624 DATE: December 1, 2021 REMANDED Entitlement to a total disability rating based on individual employability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service with the US Marine Corps from November 1969 to November 1972 and January 1973 to March 1975. This matter is on appeal to the Board of Veterans' Appeals (the Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified in a hearing before a Veterans Law Judge. A transcript of the hearing is in the evidence of record. In September 2021, the Veteran was informed that the Judge who conducted his February 2013 hearing was no longer available to participate in his appeal, the appeal was reassigned to a new Veterans Law Judge, and he had the right to request another optional Board hearing. No response was received within 30 days from the date of the letter; therefore, it was assumed that the Veteran did not wish to appear at another Board hearing. The Veteran's claims were remanded for additional development in August 2013, August 2017, and January 2020. The Board regrets the delay but finds additional development is necessary prior to final adjudication of his claim. In July 2009, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. He contended his hernia complications prevented him from securing or following a substantially gainful occupation. He last worked in 1999 for Valley Bell as a laborer. He reported working for Valley Bell from 1987 to 1999. In a July 2009 statement in support of his claim, he reported due to his hernia problems a mesh was placed in 1999. The mesh had slipped and caused him so much pain that he could not work. There were times when his pain was so great that he could not walk. He subsequently had a morphine pump placed to help with his pain. In addition to his hernia issues, he was unable to work due to his service-connected erectile dysfunction. In July 2009, United Dairy Inc., the Veteran's employer from November 1987 to May 25, 1999, provided a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran was employed as a shipper/loader and was provided no concessions due to his age or disability. The Veteran's former employer indicated he lost four months of work due to his disability. Ultimately, due to his hernia condition, he left on workers' compensation and subsequently never returned to work. In the February 2013 hearing, the Veteran testified he was not currently employed and was receiving Social Security disability. The Veteran's treatment records show him reporting in December 2007 and January 2008 that he was working in his wife's flower shop making deliveries. In August 2008, he was negotiating the purchase of a restaurant for his wife. In December 2008, the Veteran continued to report making deliveries and taking care of paperwork for his wife's flower shop. A June 2009 social worker note indicated he was an active man who helped his wife in her restaurant and flower shop businesses. By May 2011, helping his wife in the running of their small business, the restaurant, was noted to be a mental health stressor for him. The Veteran reported in September 2018, October 2018, and March 2019 that he worked at the restaurant, which required a lot of walking. Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). 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 (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Based on the Veteran's reports to his treating providers, it is necessary to obtain additional information regarding his employment history. The RO should request details on the nature of the Veteran's work in his wife's flower shop and restaurant to determine the hours of employment, the nature of any employment in his family businesses including whether any employment was marginal employment and in a protected environment, and income information. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding VA and non-VA treatment records with the claims file. 2. Ask the Veteran to provide income and employment information from 2008 to the present, to include the hours of employment and the nature of any employment in his family businesses. 3. After completion of the above and any additional development deemed necessary to determine the nature and extent of any employment during the pendency of this appeal, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the opportunity to response. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.