Citation Nr: 21026186 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 10-13 887 DATE: April 30, 2021 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) prior to September 14, 2013 is denied. FINDING OF FACT The Veteran was gainfully employed until September 13, 2013. CONCLUSION OF LAW The criteria for TDIU prior to September 14, 2013 have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1996 to September 1997. In a February 2018 decision, the Board denied claims for increased rating. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 order, the Court granted a Joint Motion for Remand (JMR), which vacated and remanded the Board’s decision. The appeal was most recently before the Board in February 2021. In that decision, the Board adjudicated increased rating claims for the left ankle and left knee. The Board remanded the TDIU claim as part of the increased rating claims per Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board is satisfied that there has been substantial compliance with the February 2021 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the Board’s remand, the Agency of Original Jurisdiction (AOJ) effectuated the February 2021 Board decision and granted TDIU beginning September 14, 2013. Entitlement to TDIU prior to September 14, 2013 TDIU was initially awarded, effective August 29, 2014. After the February 2021 Board decision, the AOJ awarded TDIU from September 14, 2013. The TDIU claim is part of the increased rating claims for the left knee and ankle, which have been pending since March 2009. Rice, 22 Vet. App. at 447. For the following reasons, the Board finds that TDIU prior to September 14, 2013 is not warranted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. 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. 38 C.F.R. § 4.16. The Veteran’s combined disability rating was 50 percent from March 2009, 60 percent from March 2010 and 90 percent from March 2012. The combined rating did not meet the criteria for consideration of a TDIU on a schedular basis until March 20, 2012. 38 C.F.R. § 4.16(b). However, the evidence reflects that the Veteran was gainfully employed until September 13, 2013. In his September 2014 VA Form 21-8940 application for TDIU, the Veteran reported he worked in the capacity of sales and technician earning $20,800 per year until he stopped working in September 2013. In January 2015, the Veteran’s former employer returned VA’s request for employment information, stating that the Veteran worked in sales, earning $26,723 annually. He stopped working on September 13, 2013. The Board notes that the Veteran’s salary in 2013 was almost one half in comparison to previous years and, considered whether the Veteran’s annual earned salary of $26,722 is considered marginal employment under 38 C.F.R. § 4.16. However, the U.S. Department of Commerce, Bureau of the Census lists the poverty threshold for one person in 2013 to be $11,888. Thus, the Veteran’s income in 2013 exceeds the poverty threshold and is not considered marginal employment. 38 C.F.R. § 4.16. Accordingly, as the Veteran was substantially gainfully employed prior to September 14, 2013, entitlement to TDIU is not warranted for that period. As the preponderance of the evidence is against the claim for TDIU prior to September 14, 2013, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.