Citation Nr: 21024267
Decision Date: 04/22/21	Archive Date: 04/22/21

DOCKET NO. 14-28 596
DATE: April 22, 2021

REMANDED

Entitlement to a total disability rating based on individual employability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from August 203 to July 2004 and January 2008 to January 2009.

In November 2020, the Board of Veterans’ Appeals (Board), in pertinent part, remanded the issue of entitlement to a TDIU for further development.  Specifically, the Board instructed the regional office (RO) to request VA Form 21-8940 from the Veteran.

Entitlement to a TDIU is remanded.

Upon review of the record, the Board finds that the claim must be remanded.  The Board sincerely regrets the additional delay caused by this remand, particularly as this matter has been the subject of prior remands, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim.

There is insufficient evidence to decide the claim in light of evidence of record that the Veteran maintained employment during at least some of the appellate period.  The Veteran was afforded a PTSD VA examination in February 2021, in which the Veteran reported being currently employed at a local newspaper where he has worked for over 30 years.  He also reported that he works 30 to 35 hours per week.  

Although the Veteran has shown employment, such employment does not necessarily preclude an award of TDIU unless the employment is considered “substantially gainful employment.”  See C.F.R. § 4.16(a).  There is no regulatory definition of “substantially gainful employment.”  However, 38 C.F.R. § 4.16(a) instructs that “[m]arginal employment shall not be considered gainful employment.”  “Marginal employment” exists 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. “Marginal employment” may also be held to exist on a facts-found basis, including employment in a protected environment such as a family business, when earned annual income exceeds the poverty threshold.  Id.  

The evidence of record is insufficient to determine whether the Veteran’s employment with a local newspaper constituted “marginal employment.”  Though the RO requested more information from the Veteran in January 2021, tax records were not requested.  On remand, the Agency of Original Jurisdiction should provide the Veteran with an opportunity to supply relevant information in support of his claim for entitlement to TDIU, including updated salary information, and sufficient information to determine whether the Veteran’s employment was in a protected environment.

The matters are REMANDED for the following action:

1. Assist the Veteran in associating with the claims file updated treatment records.

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2. Obtain complete employment and education history from the Veteran concerning his TDIU claim, including complete salary history and tax records.  Conduct any further development necessary to determine whether any part of the Veteran’s employment history was marginal or in a protected environment.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. L. Park, 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.