Citation Nr: 21077523 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 03-21 712 DATE: December 30, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1986 to May 1991, and in the United States Army from May 1993 to February 1997, and from April 2000 to October 2002. He also had service in reserve components of the military, to include a period of active duty for training from June 1985 to October 1985. His decorations include the Southwest Asia Service Medal and the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. The issue on appeal was previously before the Board in June 2012 and again in November 2020. Both time the Board remanded to the agency of original jurisdiction (AOJ) for additional development. Entitlement to a TDIU is remanded. As noted above, this claim was remanded in November 2020 to, inter alia, determine the dates the Veteran has worked, the income generated in each year of the pertinent period on appeal, and to determine whether his work qualified as substantially gainful employment. The Board finds that the Veteran's employment status during the appeal period remains unclear. In this regard, the AOJ made determinations that the Veteran has been gainfully employed since May 30, 2007. The AOJ noted he worked for the VA Central Office from May 2007 to August 2014 and as a Director of Data Governance for multiple companies from August 2014 to present. See February 2021 Advisory Opinion. However, it is not clear how the AOJ came to those conclusions. In a January 2021 VA 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), the Veteran indicated that he last worked full-time on May 30, 2007. The only employment the Veteran listed, however, was related to his service at the Pentagon from April 2000 to October 2002. The record reflects a VA Form 21-4192, Request for Employment Information, which notes employment as a VA Analyst from May 2007 to August 2014. However, the exact dates of employment and income generated for the periods of employment remain missing. See Stegall v. West, 11 Vet. App. 268 (1998). Significantly, while the Veteran noted the period of employment at VA Central Office, it is unclear whether the work is marginal or not. In this regard, he indicated that he missed a lot of work due to his service-connected knee disability, as well as noting that on the VA 21-8940 that he last worked full-time in May 2007. Furthermore, the Veteran did not list his income generated during this period of employment. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. On the current record, it is unclear whether the Veteran's periods of employment were marginal or substantially gainful employment. Accordingly, the Board finds that further development is required before adjudicating the merits of the TDIU claim. Specifically, the AOJ should obtain from the Veteran a summary of his earnings for the period from May 2007 to present. The matters are REMANDED for the following action: 1. Undertake additional development to determine the dates the Veteran has worked and the income he has generated in each year of the pertinent period on appeal to determine whether his work qualifies as substantially gainful employment. As part of that development, ask the Veteran to fully complete and return an updated VA Form 21-8940. (Continued on the next page) 2. Request that the Veteran provide a summary of his earnings for the period from May 2007 to present, as well as any evidence of such earnings, to include tax returns, Social Security earnings summaries, and paystubs. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include obtaining additional examinations, if necessary), the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.