Citation Nr: 21009598 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-34 681 DATE: February 22, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to May 17, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1994 to January 2014. In its September 2019 decision, the Board found that the issue of entitlement to TDIU was raised by the record and remanded the claim for development and adjudication by the RO in the first instance. The matter returned before the Board in September 2020 where it was remanded and referred to the Director, Compensation and Pension Service, for extraschedular consideration. The matter has now come back before the Board for adjudication. It is noted that the Veteran appealed his claims for an increased rating for hypertension and an increased rating for migraine headaches. The Board notes these claims are not properly before the Board at this time as the Veteran’s claims are under the Appeals Modernization Act (AMA) and, therefore, cannot be merged with this legacy appeal. As a jurisdictional matter, the Board notes that the Veteran’s TDIU has been granted as of May 17, 2018. However, the Veteran contends that he was unable to work due to his service-connected disabilities for the time period prior to May 17, 2018. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. This regulation provides that marginal employment shall not be considered “substantially gainful employment.” Rather, marginal employment is defined as employment where 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. Id. Marginal employment may also be found in some cases where earned annual income exceeds the poverty threshold, such as where there is employment in a protected environment, such as a family business or sheltered workshop. Id. As such, the Board needs additional evidence to determine whether the Veteran’s past employment constituted “marginal employment.” On remand, the agency of original jurisdiction (AOJ) should request that the Veteran provide, for the entire period on appeal, evidence pertaining to his annual income, including financial or other documents. Any other development deemed necessary to adjudicate the claim for entitlement to TDIU should be completed. Specifically, the Board notes that the December 2018 request for employment information from the Veteran’s former employer noted that the Veteran’s amount earned during the 12 months preceding his last date of employment, May 16, 2016, was $22,185.21. See December 2018 Request for Employment Information in Connection with Claim for Disability Benefits. In addition, the Veteran reported varying income for his employment during the period on appeal. The Veteran’s 2017 tax return is of record but does not coincide with the amount reported as earned by the Veteran. Therefore, the Board finds that it is pertinent to request any tax or financial documents during the period on appeal. It is also noted that the December 2020 Advisory Opinion from the Director, Compensation and Pension, noted that the Veteran was above the poverty threshold in 2018 for two people. The Board notes that the 2017 tax return lists six dependents with five of the children noted to being under 17 years of age. This would put the Veteran in different poverty threshold category then the Director had used. Therefore, a remand is warranted to obtain additional tax or financial documents for the time on appeal to determine whether the Veteran’s employment is considered marginal employment. The matters are REMANDED for the following action: Request the Veteran provide proof of his annual salary and income from February 2014 through May 2018, (e.g., salary statements, wage receipts, W-2s, and/or tax returns or other pertinent financial documents for each year). Further details as to his family situation and dependents at this time is also requested. Ensure that all such documentation is added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, Associate 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.