Citation Nr: 21029656 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-66 649 DATE: May 14, 2021 REMANDED The propriety of the discontinuance of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 1, 2005 is remanded. REASONS FOR REMAND The Veteran had active service from December 1984 to March 1994. In September 2014, the Agency of Original Jurisdiction (AOJ) issued a rating decision advising the Veteran that it proposed to discontinue his TDIU benefits. Following notice of the proposed reduction, the Veteran testified before a Decision Review Officer (DRO) at a hearing at the AOJ in June 2015. A transcript of the hearing is of record. This case comes to the Board of Veterans' Appeals (Board) on appeal from an AOJ decision dated in November 2015 that retroactively discontinued the TDIU effective March 1, 2005. The Veteran testified at hearings before a DRO at the AOJ in August 2017, and before the undersigned Veterans Law Judge in August 2020; transcripts of the hearings are of record. In its September 2014 rating decision, the AOJ also granted an increased 100 percent rating for service-connected PTSD. He has had a 100 percent combined service-connected disability rating since September 16, 2013. The issue of entitlement to waiver of recovery of an overpayment of VA benefits in the amount of $85,147.87 due to the retroactive reduction in VA disability compensation will be addressed in a separate Board decision. 1. The issue of whether the discontinuance of a TDIU from March 1, 2005 was proper is remanded. The Veteran essentially contends that his TDIU should not have been retroactively discontinued effective March 1, 2005, because he did not have substantially gainful employment at that time, and his earned annual income from his rental properties during the relevant period was below the poverty threshold for an individual with four dependent children. He also contends that statements made by his former attorney in a March 2007 Memorandum of Authorities in support of his petition for return of his property seized by the Sheriff's Department were inaccurate with regard to the amount of monthly rental income he received from properties he owned. See his February 2016 notice of disagreement, November 2017 substantive appeal, August 2020 Board hearing. Although the Veteran has admitted receiving rental income from properties he owned during the period in question, he asserts that he did not manage properties to the point that it was a business, and did not purposely or intentionally fail to report rental income that he received while receiving TDIU benefits. See November 2017 substantive appeal. Governing regulation provides that a TDIU may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Substantially gainful employment is defined as work which is more than marginal. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person. 38 C.F.R. § 4.16 (a); Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). A TDIU rating may be reduced, but actual employability must be established by clear and convincing evidence. 38 C.F.R. § 3.343 (c)(1). If a Veteran is actually employed in a substantially gainful occupation, that is prima facie evidence of employability. See Faust v. West, 13 Vet. App. 342 (2000) (where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343 (c)(1)). The Board notes that where a reduction is considered warranted and would result in a reduction or discontinuance of compensation payments currently being made, certain notice and procedural requirements must be followed, but the provisions of 38 C.F.R. § 3.105 (e) do not apply in cases of fraud. Roberts v. Shinseki, 23 Vet. App. 416 (2010). VA has defined fraud as an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining eligibility for VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. 38 C.F.R. § 3.1(aa)(2). The AOJ's determination that the Veteran had engaged in substantially gainful employment from March 1, 2005 was based in significant part on an August 2010 letter from VA's Office of Inspector General (OIG) stating that its Criminal Investigations Division (VA OIG-CID) had received information indicating that the Veteran may have provided false information to the AOJ (VA Regional Office in this case) in order to fraudulently obtain and/or continue to obtain VA disability compensation benefits. VA OIG stated that it believed that the Veteran owned, managed, and rented multiple properties for profit and had failed to disclose that employment and subsequent income to VA while receiving TDIU compensation benefits. VA OIG stated that this information was being forwarded to the AOJ for review and any appropriate administrative action. The Board finds that the evidence of record is incomplete, as the claims file does not contain a copy of any VA OIG report regarding its investigation of the Veteran's possible fraud related to his compensation benefits that was referenced in the August 2010 OIG letter to the AOJ. Remand is required to attempt to obtain this report, as well as court records of any related court case, if any. The matters are REMANDED for the following action: 1. Contact the VA Office of the Inspector General (OIG) and request a copy of the report of any OIG investigation that followed the August 2010 letter from the Seattle Criminal Investigations Division (VA OIG-CID) regarding possible fraud with regard to the Veteran's disability compensation benefits. If the VA OIG concludes that privacy issues preclude the provision of the report and associated records to the AOJ and the Board, it should be asked to provide a redacted copy or summary of the file. If a complete report cannot be obtained, an explanation should be provided, and the claims file annotated. 2. The AOJ should also attempt to obtain court records of any criminal case related to the OIG investigation of possible fraud related to compensation benefits. If such information cannot be obtained, provide an explanation as to the efforts undertaken to obtain such information. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.