Citation Nr: 21075806 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-06 397A DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to June 2, 2018, is denied. FINDING OF FACT Prior to June 2, 2018, the combined service-connected disabilities did not render the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to June 2, 2018, the criteria for entitlement to TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from November 1995 to October 1998. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision of the RO in New Orleans, Louisiana. In March 2021, the Board denied service connection for bilateral pes planus and denied higher ratings for the service-connected mental disability. The Board's decision with respect to those claims is final. The Board also remanded the inferred claim for entitlement to TDIU. In a June 2021 rating decision, the agency of original jurisdiction granted TDIU, but established an effective date of June 2, 2018, which does not encompass the entire appeal period. The period prior to June 2, 2018, has now been returned to the Board for adjudication. TDIULaw and Regulations It is the established policy of 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate 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. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). 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 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. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to TDIU. For the period from January 5, 2011, to May 3, 2018, the schedular criteria for TDIU were not met. The combined disability rating was 60 percent. The requirement is 70 percent for two or more service-connected disabilities. For the brief period from May 3, 2018, to June 2, 2018, the schedular criteria were met. More importantly, the Veteran does not contend that he was too disabled to work prior to June 2, 2018. He testified at the Board hearing in May 2018 that he was still employed. The VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) submitted on April 12, 2021, states that he became too disabled to work on June 1, 2018, and that he worked as a truck driver until that date, earning at least $4,000 per month. This would constitute substantially gainful employment for the period prior to the current effective date. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans' Claims (Veterans Court) held that where an individual became employed at a substantially gainful occupation, irrespective of the number of hours or days that individual actually works and without regard to his earned annual income prior to his having been awarded TDIU, such employment constitutes, as a matter of law, a substantially gainful occupation and thus "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). Accordingly, the Board concludes that the criteria for TDIU are not met prior to June 2, 2018. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.