Citation Nr: 21031679 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 13-18 253 DATE: May 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT During the period on appeal, the evidence reflects the Veteran has been employed in a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St Louis, Missouri. This issue was previously before the Board in October 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in December 2020 the Veteran requested to appeal the October 2020 Board decision. The Board has forwarded the Veteran's request to the United States Court of Appeals for Veterans Claims (Court) as it relates to the Veteran's entitlement to an increased rating for a right ankle disability. However, as the Court noted in its January 2017 decision, a remand is not a final Board decision and as such the Court does not jurisdiction to consider the Veteran's appeal of the December 2020 Board decision to remand the Veteran's claim for entitlement to a TDIU. As the Board is now issuing a final decision in regard to the Veteran's claim to entitlement to a TDIU, the Veteran's appellate rights are included with this decision. Entitlement to a TDIU is denied. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is currently service-connected for post-traumatic stress disorder (PTSD) rated as 50 percent disabling, right ankle fracture rated as 40 percent disabling, coronary artery disease rated as 30 percent disabling, fracture with left septum deviation rated as 10 percent disabling, and scar residuals of nose fracture rated as 10 percent disabling. His combined disability rating is 80 percent. Consequently, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The main question before the Board is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not 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 fact found basis (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. 38 C.F.R. § 4.16 (a). In this case, a preponderance of the evidence supports finding that the Veteran has engaged in substantially gainful employment throughout the period on appeal. In his December 2015 Application for TDIU, the Veteran alleged that he last worked full time in November 2013, and he became too disabled to work as of August 2013. He stated that he was still employed, but unable to maintain 48 hours a week because of his ankle disability. He reportedly earned $8,160 in the previous 12 months. In his May 2016 informal appeal to the Court, the Veteran reported that his ankle and leg caused him to lose his job, and he was no longer able to be employed as a driver. A May 2016 Report of Incarceration indicates the Veteran was confined from November 2013 to September 2014. May 2016 VA treatment records indicate that the Veteran's activities included going to work and driving vehicles, and raising 50 cows. In a January 2017 Request for Employment Information, C. motors indicated that the Veteran was currently employed. Work responsibilities included driving and trash pickup; he previously hauled vehicles. His employer noted that the Veteran earned $9,600 in the previous 12 months. However, the employer also reported that the Veteran worked 48 hours a week. January 2017 VA treatment records note that the Veteran worked full time and raised cattle. At a January 2017 VA examination, the Veteran reported that he did not really participate in recreational activities because he worked a lot. VA treatment records dated March 2017 and July 2017 indicate that the Veteran worked full time. November 2017 VA treatment records reflect that the Veteran worked part time as a vehicle auction driver and sometimes walked a quarter mile to vehicles. He also raised cattle at home, which involved carrying feed and gear over rough ground. January 2018 VA treatment records indicate that the Veteran worked full time. In a March 2018 correspondence, the Veteran reported that he was out of work for two years and that he worked part time until his heart attack and then could not work at all. April 2018 treatment records note that the Veteran was self-employed in auto sales. At a June 2018 VA examination, the Veteran reported that in November 2017 he lost his boat and RV storage business, raised cattle, and was investigating becoming an over the road truck driver. He denied having any hobbies/interests and stated, "I just work." At an April 2019 VA examination, the Veteran reported that he was an over the road truck driver where he would leave on Sunday and return on Friday. He reported that on weekends, he and his family worked on their farm and raised 15 cattle. June 2020 VA treatment records note that the Veteran was a truck driver and thus phone visits worked best for his schedule. In a September 2020 correspondence, the Veteran reported that he had a small truck business and he had two semi-trucks. In a February 2021 correspondence, the Veteran reported that he was unable to work. In April 2021, the Veteran, through his representative contended that even if the he was able to work short periods, his employment was marginal and not gainful. Although the Veteran contends that he is unable to work, the record contains multiple conflicting reports that the Veteran worked throughout the appellate period. While he reported in his informal appeal to the Court in May 2016 that he was no longer able to be employed, VA treatment records that same month noted that the Veteran's activities included going to work and driving vehicles and raising 50 cows. Further, although he reported to the Board in March 2018 that he had he had been out of work for two years and could not work at all, the record contains treatment reports from the previous two years noting that the Veteran continuously worked full time. Additionally, April 2019 VA treatment records demonstrate he was an over the road driver from Sunday to Friday and on weekends he worked on the farm. The Veteran's conflicting statements undermine his credibility, and as such the Board assigns little probative value to his lay statements. As noted above, the Veteran's representative contends that the Veteran's employment was marginal. The Board acknowledges that the Veteran reported earning only $8,160 as a truck driver in the previous 12 months in his December 2015 claim. The Veteran's report is corroborated by C. motors, who in January 2017 reported that the Veteran earned $9,600 (or $200 a week) in the previous 12 months. This would suggest his earnings were likely below the level that would be considered marginal employment. However, the Veteran has also reported owning a boat and RV business, and later a small truck business with two semi-trucks. Throughout the appeal, he has also reported owning a farm and raising cattle. Finally, in April 2019, he reported working full-time as an over the road driver. This evidence of full time work, of a skilled nature, is supportive of the Veteran having more than marginal employment. In October 2020, the Board remanded the appeal to provide the Veteran the opportunity to submit documentation regarding work history with evidence to document marginal employment such as pay stubs, W2 forms, tax returns, as well as earnings from any self-employment. The Veteran did not thereafter submit any supporting documentation. The duty to assist is not a one-way street, and the Veteran has not provided the requested tax information or any other evidence to show that his current employment can be considered marginal. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the burden is not on VA to disprove his TDIU request. See 38 U.S.C. § 5107 (a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits administered by the Secretary."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Thus, the preponderance of the evidence demonstrates that the Veteran has worked throughout the appeal period. Moreover, the Veteran has not submitted sufficient evidence to support his assertion that his work has been marginal. The Board does not doubt that the Veteran's service-connected disabilities have an impact on his employability. Notably, he has reported difficulty driving with lower extremity. However, the record shows he has been employed throughout the appeal. For the reasons and bases set forth above, the preponderance of the evidence is against finding that the Veteran cannot engage in substantially gainful employment or has engaged in only marginal employment. Accordingly, entitlement to a TDIU is denied. In reaching that decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.