Citation Nr: 21031332 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-15 185 DATE: May 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from October 16, 2013 to September 30, 2016 is granted. FINDING OF FACT During the period of October 16, 2013 to September 30, 2016, the Veteran's service-connected disabilities prevented him from obtaining and maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities have been met as of October 16, 2013. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Marine Corps from February 1970 to February 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veteran Law Judge (VLJ) in November 2020. A transcript of the hearing is associated with the claims file. Then in January 2021, the Board remanded the claim for development. In March 2021, a rating decision granted entitlement to TDIU for the Veteran effective on September 30, 2016. At the same time as the rating decision, a supplemental statement of the case was issued, and the claim for TDIU was returned to the Board. The Board finds that the foregoing reflects substantial compliance with the January 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will proceed to adjudicate the claim currently on appeal. Entitlement to TDIU from October 16, 2013 to September 30, 2016 is granted. The Veteran was granted TDIU effective on September 30, 2016. The Veteran contends that while he continued to work in self-employment until September 29, 2016, he was affected by his disability and disabled from work as early as June 2012. See VA 21-8940 Veterans Application for Increased Compensation Based on U received February 2021. After a thorough review of the evidence, the Board concludes the Veteran's service-connected PTSD prevented him from obtaining and maintaining substantially gainful employment from October 16, 2013 to September 30, 2016. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period of October 16, 2013 to September 30, 2016, the Veteran's service-connected PTSD is rated at 70 percent disabling, and the Veteran meets the basic eligibility for TDIU during that same period. Next, the Board considered whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. The evidence supports that the Veteran was the owner of a seafood market from October 16, 2013 to September 30, 2016. See VA 21-8940 Veterans Application for Increased Compensation Based on U received February 2021. When the Veteran first filed his application, he reported that he was unable to perform his duties at work and that he could not work with the public. See VA 21-8940 Veterans Application for Increased Compensation Based on U received October 2013. The Veteran explained that his family had taken over the business and that they were in the process of having the business renamed. See VA 21-4138 Statement in Support of Claim received June 2014. The Veteran's daughter and son in law took over the business. She stated that she worked there before officially taking over the business. From 2010 to 2016, she reported that her father was unable to run the business well. She explained that he often had to stay in the back of the business because he was not stable enough to deal with customers. See Correspondence received November 2020. She felt that he was not rational about situations at work anymore and that he would not be able to work at another job. Since taking over the business fully in 2016, she reported a 40 percent increase in business profits. Id. The Board notes that marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, 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 as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (which includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The Veteran's income tax reflects business income in 2013 of $13,051, business loss in 2014 of -$11,825, business income in 2015 of $14,475, and business income in 2016 of $19,896. The Veteran has reported no further income from the business after 2016. See Income and Tax Statements received February 2021. Other related documents suggested that the business was in debt and had little assets when it was transferred to the Veteran's daughter. See Court Documents-General received February 2021. From 2013 to 2016, the Veteran's earnings appear to exceed the poverty threshold in three of the four years. The Veteran's statements and his daughter statements supported that the Veteran was not able to perform normal duties to run the business. He relied on his daughter to handle many aspects of the business until the time she legally took over the business in 2016. Considering the evidence presented as well as the testimony, the Board finds that the Veteran worked in a protected environment of a family run business. With the benefit of the doubt resolved in favor of the Veteran, the Board finds that from October 16, 2013 to September 30, 2016, the Veteran was effectively prevented from obtaining and retaining gainful employment due to his service-connected PTSD. The Board finds that the Veteran is entitled to an award of TDIU from October 16, 2013 to September 30, 2016. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.