Citation Nr: 21009981 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-22 747 DATE: February 23, 2021 ORDER Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s service-connected disabilities were so severe that they precluded the Veteran from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2008 to July 2010. This case has a long procedural history. Most recently, in November 2020, the Board remanded the TDIU claim for further development to obtain tax and income information. The development requested having been completed, the case is now appropriate for appellate review. Entitlement to TDIU In October 2015, the Veteran submitted an intent to file a claim as well as a VA Form 21-526EZ, Fully Developed Claim, alleging unemployability, among other claims. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the Veteran’s service-connected disabilities are so severe, without factoring the effect of nonservice-connected disabilities, as to prevent the Veteran from obtaining and maintaining substantially gainful occupation. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. 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. The Veteran is service-connected for eight disabilities including posttraumatic stress disorder with a 70 percent disability rating and has a combined rating of 90 percent since March 2015. Therefore, the Board finds the Veteran meets the schedular criteria for the period on appeal. 38 C.F.R. §4.16(a). However, even if the rating requirements are met, TDIU may be awarded only if the evidence shows that a Veteran’s impairment is so severe that it is impossible for him to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Therefore, the inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993), i.e., to prevent the Veteran from “securing and following a substantially gainful occupation,” Ray v. Wilkie, 31 Vet. App. 58, 73 (2018). The U.S. Court of Appeals for Veterans Claims clarified that the phrase “unable to secure and follow a substantially gainful occupation” has two components, see id., an economic component and a noneconomic component. The economic component derives from an employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides. Id. Therefore, the economic component suggests a living wage, and a marginal employment does not qualify as a substantially gainful occupation. 38 C.F.R. § 4.16(a). For instance, marginal employment is present if a Veteran’s earned annual income is equal or below the poverty threshold for one person, as established by the U.S. Department of Commerce, Census Bureau. Id. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Further, marginal employment may also exist in certain circumstances when the Veteran’s earned annual income exceeds the poverty threshold but he is employed in a “protected environment,” to include a family business. In determining whether the employment is “protected,” the Board considers the magnitude of the Veteran’s job responsibilities and whether the environment was designed to rehabilitate, train, or provide employ for those with disabilities. Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Here, the Veteran has been gainfully employed full-time during the period on appeal according to a January 2016 Form 21-4192 completed by the Veteran’s employer and February 2018 VA treatment records noting the Veteran was employed full-time in the oil field. The issue before the Board is whether the Veteran is engaged in marginal employment. Marginal employment is present if a Veteran’s earned annual income is equal or below the poverty threshold for one person, as established by the U.S. Department of Commerce, Census Bureau. 38 C.F.R. § 4.16(a); Ferraro at 332. In December 2020, the Veteran provided tax and income information from the Internal Revenue Service. The information shows that the Veteran earned $13,029 from 2 employers in 2014. The poverty level as determined by the Census Bureau for 2014 was $12,071, therefore Veteran is considered to have maintained gainful employment in 2014. For each year 2015 through 2019, the Veteran earned at least $25,000, which exceeds the poverty level set for each year by the Census Bureau by $13,000 or more. Further, there is no evidence showing that the Veteran was employed in a “protected environment” such as a family business. Therefore, the Veteran is not engaged in marginal employment. Accordingly, the Board finds the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities were so severe that they precluded the Veteran from securing or following a substantially gainful occupation. Thus, the TDIU claim is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.