Citation Nr: 21030189 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-23 208 DATE: May 18, 2021 REMANDED A total disability rating based on individual unemployability (TDIU). REASONS FOR REMAND The Veteran served on active duty from November 1966 to September 1968. The case is on appeal from a February 2015 rating decision. In October 2018, the Veteran testified at a Board hearing. Most recently, in a May 2020 decision, the Board denied a TDIU. The Veteran appealed the decision to the United States Court of Appeal for Veterans Claims (Court) and, in December 2020, the parties to this appeal entered into a Joint Motion for Remand (Joint Motion), in which the parties agreed that the Board's decision should be vacated. The Court granted the Joint Motion in an Order issued later in December 2020. A TDIU. The Veteran contends that his employment is marginal based on working in a protected environment. In an October 2014 TDIU application, he reported becoming too disabled to work in April 2006. He also reported being self-employed supervising employees of a gutter and maintenance business and earning $15,000 over the prior 12 months. He stated that he cannot do physical labor due to neuropathy. In February 2017, the Veteran's representative submitted a private vocational assessment written by a rehabilitation consultant. The consultant reported that the Veteran had run a private gutter and screen installation business for the prior 10 years. The consultant also reported that he is unable to perform the physical demands of installing gutters and screens due to his lower extremity disabilities. She stated that the Veteran's service-connected PTSD prevents him from successfully operating the business due to conflicts with employees. She concluded that the Veteran's service-connected disabilities prevent him from performing any type of substantial gainful employment within the general labor market. During the October 2018 Board hearing, the Veteran reported that he constantly has to replace employees of his company due to personal conflicts caused by his PTSD. He also reported that he has lost customers due to his PTSD symptoms. He further reported that he cannot perform gutter or screen work himself due to his lower extremity disabilities. The Veteran's representative expressly stated that the Veteran is not claiming marginal employment based on his income level, but rather employment in a protected environment in a sheltered workshop. In a March 2020 statement, the Veteran's representative argued that the Veteran's employment is in a protected work environment because he owns the business and is able to give himself time off. The representative stated that the Veteran had lost jobs prior to starting his own business due to PTSD symptoms. The representative also stated that the Veteran has lost clients due to his PTSD symptoms and provided a list of employees that resigned or were fired from the business. As noted above, the Board denied the claim in a May 2020 decision. However, in a December 2020 JMR, the Court found that the Board did not adequately address whether the Veteran's position as a business owner and operator constituted a protected work environment, the 2017 vocational expert report, or whether the position constitutes marginal employment. The Board finds that a remand is warranted to request the Veteran provide additional information in regard to the nature of his work as business owner and operator as well as the income earned from the business throughout the appeal period. The claim is REMANDED for the following action: Request the Veteran and his representative submit a statement reporting the type of work performed, number of hours worked per week, and amount of time lost due to service-connected disabilities for each year of the appeal period starting in May 2013. In addition, request the Veteran and his representative submit a statement reporting the amount of gross income and net income earned by the business for each year from 2013 to the present. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.