Citation Nr: 21032699 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-36 401 DATE: May 27, 2021 ORDER Restoration of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective January 1, 2019, is granted. FINDING OF FACT At the time the Veteran's TDIU rating was discontinued, there was no clear and convincing evidence that he had been capable of more than marginal employment. CONCLUSION OF LAW The discontinuance of a TDIU, effective January 1, 2019, was improper. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.343, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the United States Marine Corps from January 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of that hearing has been associated with the claims file. The Veteran has contended that he remains unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Specifically, he maintains that he works on a casual, ad hoc basis because of the severity and unpredictability of his service-connected disabilities. In reducing a rating of 100 percent service-connected disability based on individual unemployability, specifically, the provisions of 38 C.F.R. § 3.105(e) are for application, but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343(c). In September 2018, the RO sent the Veteran a notice letter, which satisfied the special procedural requirements outlined in 38 C.F.R. § 3.105(e). Thus, the outcome of the Veteran's appeal turns on whether actual employability had been established. In an October 2016 rating decision, the RO granted entitlement to a TDIU, effective February 25, 2015. The RO relied primarily on the Veteran's March 2016 RO hearing testimony. The Veteran testified, in part, that he was unemployable and unable to maintain gainful unemployment due to the prostrating nature and unpredictability of his migraines. In discontinuing the Veteran's entitlement to a TDIU in December 2018, the RO referenced a Social Security Administration (SSA) income and earnings statement. It apparently revealed that the Veteran earned wages above the poverty threshold for the 2017 calendar year. Initially, the Board notes that the claims file does not include information from the SSA regarding the Veteran's income and earnings in 2017. Nonetheless, the Veteran provided a 2019 W-2 statement disclosing that he earned S7,889 in 2019. The Board finds that, while the 2017 SSA income and earnings statement may have shown that the Veteran earned wages above the poverty threshold, clear and convincing evidence has not been established that the Veteran is no longer unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Notably, the Veteran's employment was on a casual ad hoc basis since 2015. At the time the Veteran's entitlement to a TDIU had been discontinued, there had been no impactful change in his service-connected disabilities. Furthermore, the Veteran's annual income in 2019 was well below the poverty threshold, constituting marginal employment. Accordingly, the Board concludes that the discontinuance of TDIU was improper and entitlement to a TDIU is therefore restored. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.