Citation Nr: 21007317 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-04 850 DATE: February 9, 2021 REMANDED The issue of an effective date earlier than March 7, 2017, for the award of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army National Guard, which service included periods of active duty from July 2, 1985, to July 18, 1986, from February 14, 2003, to December 29, 2003, and from July 5, 2009, to April 16, 2011. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2017 rating decision in which a Department of Veterans (VA) Regional Office (RO), inter alia, denied a TDIU. The Veteran disagreed with that determination and perfected an appeal to the Board. In September 2018, the Board remanded, as inextricably intertwined with other remanded issues and issues already in remand status, the issue of entitlement to a TDIU. Via rating decision dated November 12, 2020, a decision review officer (DRO) granted entitlement to a TDIU, effective March 7, 2017. A supplemental statement of the case (SSOC) was issued that same day addressing entitlement to an effective date prior to March 7, 2017, for the award of a TDIU, and the issue of entitlement to an effective date prior to March 7, 2017, for the award of a TDIU was returned to the Board for further appellate review. In this regard, the Board notes that the Veteran did not file a specific claim for a TDIU until March 2017. At that time, however, the Veteran had pending claims for higher initial ratings for various service-connected disabilities, to include major depressive disorder and a lumbar spine disability, service connection for which was granted, both effective April 17, 2011, and which disabilities were determined to have contributed to the Veteran’s unemployability. With regard to “claims” for a TDIU, the United States Court of Appeals for Veteran’s Claims (Court) has held that “a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation.” Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, when entitlement to TDIU is raised during the pendency of a claim for a higher rating for a service-connected disability, whether an appeal as to the initial rating assigned or an increased a rating claim, the matter of entitlement to TDIU is considered to be part and parcel of claim for a higher rating. Accordingly, in this case, because the agency of original jurisdiction (AOJ) did not grant TDIU for the entirety of the appeal period (here, from April 17, 2011, forward), entitlement to an earlier effective date for the grant of TDIU is properly before the Board. Harper v. Wilkie, 30 Vet. App. 356 (2018). Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Earlier Effective Date–TDIU Upon review of the record, the Board finds that the issue of entitlement to an effective date prior to March 7, 2017, must be remanded. A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system will be considered one disability. Id. Initially, the Board notes that the Veteran has met the threshold rating requirements for an award of schedular TDIU since August 17, 2011. See 38 C.F.R. § 4.16(a). However, to be assigned a TDIU prior to March 7, 2017, it must be also determined that the Veteran was also unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 4.16. Here, the Veteran has asserted that he last worked in February 2016. See March 2017 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Notably, however, the Veteran reported that during the period from June 2012 through February 2016, the Veteran was self-employed as a consultant, working only 20 hours per week; his highest gross earnings per month was indicated to be $2,141.00. Unfortunately, the evidence of record is insufficient to allow for the Board to make a fully informed decision regarding whether the Veteran had substantially gainful employment during the period on appeal. In this regard, the Board notes that “[m]arginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). “[M]arginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.” 38 C.F.R. § 4.16(a). Marginal employment may also 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. Additionally, for pension cases, examples of marginal employment are a self-employed farmer, a small business owner, a contractor, or a person employed at less than half the usual remuneration (payment received for usual employment). See 38 C.F.R. § 4.17(a). Overall, the Board cannot discern from the evidence of record whether the Veteran’s annual income was below the poverty level at any point prior to March 7, 2017. Accordingly, the Board finds that further AOJ development is necessary to clarify and verify the Veteran’s income while employed to determine whether a TDIU is warranted prior to March 7, 2017. Such development should include contacting the Veteran and requesting detailed income information, as well as information regarding possible sheltered/marginal employment, as well as, verifying such income information to the extent possible with the Social Security Administration (SSA) or any other appropriate agency. The Board additionally notes that in March 2018, the Board remanded, for further development, issues of entitlement to service connection for various disabilities as well as to higher initial ratings for major depressive disorder, lumbar strain with disc herniation, left lower extremity radiculopathy, and bilateral upper extremity radiculopathy. A review of the record shows that action by the AOJ on those remanded issues remains in progress and they remain pending before the AOJ at this time. Although the Veteran has met the threshold percentage requirements for an award of a TDIU throughout the appeal period, the severity of the Veteran’s service-connected disabilities may be relevant to the determination of whether the Veteran was unable to engage in substantially gainful employment prior to March 7, 2017. Therefore, to ensure that the Veteran is afforded full due process of law, the Board finds that, after completion of the requested development, the AOJ should hold the appeal in abeyance until the previously remanded claims have been resolved. The matters are REMANDED for the following action: 1. Contact the SSA and request the Veteran’s earning statements from 2011 forward. If the SSA informs the AOJ that it cannot provide earnings statements to VA without the Veteran’s approval, the AOJ should undertake to obtain any documentation needed from to the Veteran to enable to AOJ to obtain his SSA earnings statements. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159 (c) with regard to requesting records from federal facilities. All records and/or responses received should be associated with the claims file. 2. Contact the Veteran and request that the Veteran provide specific income information for his periods of employment during the appeal period (from April 17, 2011, forward). The Veteran should be requested to provide information verifying his income for the years 2011 through and including March 2017, to include any tax returns, pay stubs, wage and earnings statements, or the like. 3. If, after completion of the above-requested development has been completed, the claims remanded by the Board in March 2018 are still pending before the AOJ, hold in abeyance the Veteran’s claim for an effective date earlier than March 7, 2017, for the award of a TDIU until all development and adjudicative actions on the remanded claims directed by the Board in the March 2018 remand has been completed. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.