Citation Nr: 21022829 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-16 629 DATE: April 19, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to November 1968. The appeal was initially before the Board in October 2019, when the Veteran’s claim for a TDIU was denied. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated August 2020, the Court vacated the Board’s 2019 decision and remanded the matter to the Board for compliance with the instructions included in the 2020 Joint Motion for Remand (JMR) by the parties. Specifically, the JMR instructions were for the Board to “reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” It was also noted that the Board erred by not considering the Veteran’s education, training and work history, and did not define the phrase “unable to secure or follow a substantially gainful occupation” as held in Ray v. Wilkie, 31 Vet. App. 57, 67-76 (2019). Although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran’s claim. The evidence shows that although the Veteran claims his full-time employment ended in May 2013, there was subsequent employment history noted in his VA medical records. For example, in June 2014, he reported he worked as a furniture finisher and worked with moving companies; in May 2015, he reported he was “slowing down at work…and his sons have been helping him out”; and in November 2015, he reported working with his sons and that he had been self-employed doing insurance claims. In the Veteran’s December 2016 VA Vocational rehabilitation application, he stated that he worked as an independent home inspector, but he did not want to provide details. He reportedly inspected homes vacated by short-and long-term tenants until the company was purchased and policy changed. However, the ability to work sporadically or obtain marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU, and marginal 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. See 38 C.F.R. § 4.16; Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Gainful employment contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a Veteran’s ability to secure or follow that type of employment. Id. Further, marginal employment may be held to exist on a “facts found basis” even 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.” See 38 C.F.R. § 4.16(b). After a review of the record, the Board notes although the Veteran submitted a TDIU application in October 2016, where he indicated that he was self-employed until May 2013 and that at most he made $1,000/month, which may be marginal, there is no other information regarding other sources of income after May 2013, nor has income information and employer verification been obtained or submitted. Therefore, VA has a duty to assist; and on remand, an attempt to develop the record as to the Veteran’s employment and yearly income since May 2013 must be undertaken. The Veteran has an obligation to submit evidence in support of his claim and must provide this information showing that his earnings were not gainful. While there are indications in the file he is concerned about releasing his personal information, he is advised that at this point, with evidence suggesting he did, in fact, remain working in at least some capacity until 2016, it is his responsibility to show those earnings were not gainful by submitting his income information. While the Veteran’s attorney submitted a favorable vocational assessment in November 2020, that report does not entirely accord with the information described above. That report indicated the Veteran last worked in 2012, while there are several references to jobs thereafter. The report states the Veteran retired from his position in 2012 due to his mental health condition, while numerous other records, including the Veteran’s own statements, indicate he ceased his own business when he could no longer physically do the work due to nonservice-connected conditions. The Board will further evaluate the weight to be assigned to this vocational assessment when the appeal returns after remand, but points out these discrepancies to explain why the case is being remanded despite submission of this report. Last, since it has been a few years since the Veteran’s service-connected disabilities were formally evaluated by VA, examinations should be scheduled, and his VA treatment records should be updated. As a final note, at the February 2013 PTSD VA examination the Veteran reported he received income from the Social Security Administration (SSA), but he did not indicate whether that was based on disability or retirement (although he was 65 years old at that time). However, the February 2018 private psychological report indicated he was receiving “old age” SSA benefits. If he was initially granted disability benefits, there are no such records in his file. However, any records based on disability benefits would no longer exist, as once a person reaches retirement age, disability benefits automatically convert to retirement benefits, and it is SSA’s policy to then destroy the medical records associated with the disability claim. See 68 F.R. 71210 (December 22, 2003). Therefore, the Board will undertake no development to request SSA records since they would no longer exist per SSA’s records retention policies. If, however, the Veteran was awarded disability benefits and he has any of his SSA records in his possession, he should submit them if he wants VA to consider them. The matters are REMANDED for the following action: 1. Ask the Veteran to submit a new VA Form 8940 detailing ALL employment since 2013 and information concerning his income for each year since 2013. He can submit copies of his tax returns or an earnings statement from the Social Security Administration. 2. Obtain VA medical records from treatment from April 2018 to present. 3. Schedule VA examinations to evaluate the severity of the Veteran’s hearing loss/tinnitus and psychiatric condition. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.