Citation Nr: 21010699 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-27 656A DATE: February 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 1, 2013, is granted. Entitlement to TDIU from January 1, 2013, is denied. FINDINGS OF FACT 1. Prior to January 1, 2013, the Veteran’s employment was marginal and his service-connected disabilities prevented him from engaging in substantially gainful employment. 2. The preponderance of evidence is against a finding that the Veteran’s employment was marginal as of January 1, 2013. CONCLUSIONS OF LAW 1. Prior to January 1, 2013, the criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 2. As of January 1, 2013, the criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in June 2017. This matter was previously remanded by the Board in January 2018 and August 2020. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to TDIU prior to January 1, 2013, is granted. 2. Entitlement to TDIU from January 1, 2013, is denied. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant 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 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(b). Marginal employment generally shall be deemed to exist when a claimant’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 established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. The Board notes the Veteran was assigned a 70 percent rating for other specified trauma or stressor related disorder effective October 13, 2010, satisfying the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a); therefore, the only issue that remains is whether his service-connected disabilities prevented him from engaging in substantially gainful employment during the time period on appeal. The first time the issue of unemployability was raised for purposes of a TDIU claim was in an increased rating claim filed in March 2012. See, Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that entitlement to a TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran). The record establishes that the Veteran began working part time at a VA Medical Center in May 2010. There is limited evidence regarding the Veteran’s income in this position and whether his employment might qualify as marginal employment. The Veteran has been provided several opportunities to provide information regarding his salary and employment during the appeal period. Most recently, in September 2020, VA sent the Veteran two letters, each of which requested that he provide information regarding his recent employment history, to include his salary information. The record reflects that the Veteran failed to respond to these letters and has not otherwise provided the requested information. The Veteran must cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA’s duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Accordingly, the Board must decide the claim based on the current evidence of record. In 2012, the Veteran was still employed as a dishwasher working at a VA Medical Center. His July 2012 formal application for TDIU reflects that the Veteran has a high school degree, finished three years of college, and his previous work experience includes employment as a dishwasher and janitor. The Veteran also reported a yearly salary of $9,830 in his TDIU application. The poverty threshold for one person in 2012 was $11,720. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Jan. 21, 2021). Thus, the Veteran’s income fell below the poverty threshold in 2012. An October 2012 VA examination reflects that the Veteran’s ability to work was impacted by his service-connected lower back disability. Specifically, the VA examiner stated that the Veteran had trouble performing physical work due to lower back pain which caused limitations in range of motion. Medical records in 2019 reflect that the Veteran’s service-connected psychiatric disability also impacted the Veteran’s employment, noting that the Veteran reported losing several jobs due to his mental health issues. This is consistent with a 2013 mental health evaluation which indicated the Veteran’s psychiatric conditions impaired his ability to cope with stress and that he had difficulty following complex instructions. In light of the Veteran’s education and work experience, the Board finds that, prior to January 1, 2013, he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, the Board finds the preponderance of evidence is against a finding that the Veteran was not engaged in substantially gainful employment as of January 1, 2013. Specifically, the evidence establishes that the Veteran was employed during this time period, and does not establish that such employment was marginal. The Veteran continued his employment as a dishwasher at a VA Medical Center from 2013 to 2016. However, there is no evidence of record establishing the Veteran’s income during this time period. Thus, there is no evidence reflecting whether the Veteran’s income fell below the poverty threshold for one person of $11,888 in 2013, $12,071 in 2014, $12,082 in 2015, or $12,228 in 2016. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Jan. 21, 2021). In 2017, the poverty threshold for one person was $12,488. See id. In a March 2017 Application for Vocational Rehabilitation, the Veteran stated that he was earning $11,760 per year, however, a May 2017 Rehabilitation Needs Inventory reflects that the Veteran was earning $12,660 per year. The Veteran also testified during the June 2017 Board hearing that he was earning $12,660 per year. Thus, the Board finds that the Veteran’s income as reported in 2017 exceeded the poverty threshold for one person. The record establishes that the Veteran continued to be employed at the same VA Medical Center after 2017, however, he has not provided any evidence regarding his income after 2017. Thus, the evidence establishes that the Veteran was employed after 2017, but it does not establish that his income was below the poverty threshold for one person of $12,784 in 2018 or $13,011 in 2019 (the last year for which this data is available). Accordingly, the Board finds that the evidence supports a finding that the Veteran’s employment was not marginal, based on his income, as of January 1, 2013. (Continued on the next page)   The Board also finds that the Veteran’s employment as of January 1, 2013 was not marginal on a facts-found basis. The Veteran has argued that his employer made accommodations for him, however, the Board finds that the evidence does not support a finding of marginal employment on a facts found basis, such as in a protected environment like a family business or sheltered workshop. Specifically, the evidence reflects that the only concession made to support the Veteran’s continued work was providing a rubber mat for him to stand on. The Board finds that such an accommodation does not rise to the level such as in a protected work environment. Thus, the record does not support a finding of marginal employment as of January 1, 2013. In sum, the Board finds that the Veteran’s employment prior to January 1, 2013 was marginal, and that his service-connected disabilities prevented him from engaging in substantially gainful employment. To that extent, the appeal is granted. However, the Board finds that, because the preponderance of evidence establishes the Veteran was engaged in substantially gainful employment as of January 1, 2013, the requirements of TDIU have not been met as of that date, and to that extent, the appeal is denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.