Citation Nr: 21008772 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-19 491 DATE: February 18, 2021 ORDER From July 24, 2017 through September 11, 2017, entitlement to a total disability rating based on individual employability (TDIU) is denied. FINDING OF FACT From July 24, 2017 through September 11, 2017, the Veteran was performing substantially gainful employment. CONCLUSION OF LAW From July 24, 2017 through September 11, 2017, the criteria for entitlement to a TDIU due to service-connected disability were not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1992 to December 1995. This matter is on appeal before the Board of Veterans Appeals (Board). In the August 2019 decision, the Board determined that the issue of TDIU was on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU was granted in a November 2020 decision of a Department of Veterans Affairs (VA) Regional Office (RO), effective September 12, 2017. The issue of entitlement to TDIU from July 24, 2017 through September 11, 2017 remains on appeal. During the pendency of the appeal, a November 2020 rating decision granted an increased rating for depressive disorder of 70 percent, effective July 24, 2017. As the Veteran had requested a 70 percent rating in his September 2017 Notice of Disagreement (NOD), and the RO granted the benefit sought, this is a full grant of benefits, and that issue is no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). Entitlement to a TDIU from July 24, 2017 through September 11, 2017 is denied. A total disability rating for compensation based on individual unemployability (TDIU) 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the Veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 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. 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). The Veteran has been assigned a 70 percent rating for his depressive disorder from July 24, 2017. This alone satisfies the statutory rating threshold for TDIU eligibility. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is additionally service connected for tinnitus at 10 percent effective January 1, 1996; right knee at 10 percent effective August 14, 2019; left knee at 10 percent effective August 14, 2019; and bilateral hearing loss and erectile dysfunction with non-compensable ratings. It remains for the Board to determine whether the Veteran was unable to secure or follow a substantially gainful occupation from July 24, 2017 through September 11, 2017. Turning to the Veteran’s records, per the April 2018 Application for Increased Compensation Based on Employability (VA Form 21-8940), the Veteran began working for his employer in June 1997. The Veteran indicated that he worked full time, 60 hours per week up until September 11, 2017 with maximum earnings of $7,000 per month (i.e., $84,000 per year). The Veteran reported he was terminated due to depression-related absenteeism. He also reported that although the last date he worked full-time was 9/11/2017, his disability affected his employment and made him too disabled to work on January 21, 2016. See April 2018 VA 21-8940 Veteran's Application for Increased Compensation Based on Employability. SSA records documented the following wages for the Veteran: Quarter Year Wages Paid 1st 2017 $18,590.00 2nd 2017 $18,590.00 3rd 2017 $17,466.00 See June 2020 Medical Treatment Records - Furnished by SSA, pages 35-37. Finally, according to the Veteran’s employer, the Veteran was terminated on September 1, 2017; however, his last day of work was September 11, 2017. The employer reported that, before termination, they had made concessions by modifying the Veteran’s daily work schedule, allowing him flexibility, granting him paid time off to attend appointments, utilizing other managers to cover parts of his turf while he was absent, and loaning him to different departments with less demanding deadlines and responsibilities. Ultimately, the employer reported that the Veteran was terminated for poor performance and attendance. See July 2019 VA 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits. The above evidence indicates that the Veteran was working to a level of substantially gainful employment through September 11, 2017. In the first three quarters of 2017, the Veteran made $54,646. At the time, the Veteran was married with three children, two of whom were under 18 years of age. See January 2014 and July 2019 VA 21-686c Application Requests to Add and/or Remove Dependents. In 2016, the poverty threshold for such a household was $29,360. In 2017, the threshold was $29,989. See Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited February 3, 2021). The Veteran’s income before his termination was well above this threshold. Further, although the Veteran’s employer made concessions to accommodate his disabilities, these consisted of granting the Veteran flexibility and easing his deadlines and responsibilities. As the Veteran was ultimately let go due to poor performance and absenteeism, the Board infers that he was expected to fulfill the duties of his position and, accordingly, the employer’s accommodations did not rise to the level of protected employment. Therefore, the Board finds that the Veteran was engaged in substantially gainful employment through his termination on September 11, 2017. 38 C.F.R. § 4.16. (Continued on the next page)   Thus, TDIU is precluded as the Veteran has not been shown to be unemployed during the period on appeal. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim). Accordingly, entitlement to TDIU from July 24, 2017 through September 11, 2017 is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, Attorney-Advisor 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.