Citation Nr: 21031493 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-60 798 DATE: May 24, 2021 ORDER Entitlement to a TDIU from November 30, 2014 to February 11, 2016, for substitution or accrued benefits purposes, is denied. REMANDED Entitlement to a TDIU from May 24, 2011, to November 29, 2014, for substitution or accrued benefits purposes, is remanded. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's service-connected disabilities, particularly his posttraumatic stress disorder (PTSD) with bipolar affective disorder and generalized anxiety disorder, did not render him incapable of securing and following a substantially gainful employment consistent with his education background and work history, from November 30, 2014, to February 11, 2016. CONCLUSION OF LAW The criteria for entitlement to a TDIU from November 30, 2016 to February 11, 2016, for substitution or accrued benefits purposes, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1966 to April 1969, to include service in the Republic of Vietnam. He died in June 2016, and the appellant is his surviving spouse, who has been substituted as the appellant in his appeal. On his August 2015 Notice of Disagreement, the Veteran indicated that his service-connected psychiatric disabilities negatively impacted his employability, raising the matter of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Although this issue was not separately adjudicated by the AOJ prior to the Veteran's death, it is considered part and parcel of his appealed claim. The Veteran' s spouse testified at a Board hearing before the undersigned Veterans Law Judge in October 2018. A copy of the transcript has been associated with the record. This matter was also before the Board in May 2019 and in February 2021, when it was respectively remanded for further evidentiary development. TDIU Prior to February 11, 2016 In its February 2021 decision, the Board granted an increased rating from May 24, 2011, to June 3, 2016, for the Veteran's service-connected acquired psychiatric disabilities, and TDIU from February 12, 2016, to April 18, 2016. The assignment of a 100 percent schedular evaluation rendered the TDIU appeal moot from April 19, 2016, to June 3, 2016. The period of appeal is from May 24, 2011 (the date when the Veteran filed his underlying service connection psychiatric disabilities claim) through February 11, 2016, the day prior to the Board granting the appellant's claim of TDIU, the last day of record that the Veteran was believed to have been employed. By virtue of the Board's partial allowance of an increased initial evaluation for his service-connected acquired psychiatric disabilities, the Veteran met the schedular criteria for a TDIU at all times from May 24, 2011. The Board notes that it does not currently have sufficient information to adjudicate the appellant's claim for TDIU from May 24, 2011, to November 29, 2014 (the filing date of the Veteran's underlying service connection claim to the date first day of his fulltime employment with the VA); thus, the appeal for this period is further discussed in the remand portion of this decision. 1. TDIU - From November 30, 2014, to February 11, 2016 Further review of the record reflects that the Veteran was employed during this period. In December 2017, the VA 21-4192 Request for Employment Information in Connection with Claim for Disability submitted by his employer, the John Cochrane Division of the VA St. Louis Health Care System VA, reflects that the Veteran worked full time (40 hours a week) from November 30, 2014, to February 11, 2016. His annual income was reported as $28,766. Consequently, this reflects that the Veteran was substantially and gainfully employed during this period. Total disability ratings for compensation 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; provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The term substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). With regards to the Veteran's educational background and employment history, the record reflects that the Veteran was a high school graduate who also attended "some college" prior to and after his active duty. He then pursued, and thrived in, a career in commodities sales from 1971 to 1999, that he opened his own commodities brokerage business in 2000, which he successfully ran until its closure for financial reasons in 2009. The Veteran also reported that he was earning $10,000 a month while he was an entrepreneur, prior to his arrest for embezzlement related to his business. The Board notes that the appellant asserts that notwithstanding that the Veteran was fully employed during this period, that the Veteran was working while he was sick, especially in the few months before his last day of work. However, there is no indication from the evidence of record that the Veteran's employment during this period was marginal in nature or that he worked in a "sheltered" environment. Marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id.; see also Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited December 2020). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income does not exceed the poverty threshold. 38 C.F.R. § 4.16 (a). This includes, but is not limited to, his or her employment in a protected environment such as a family business or sheltered workshop. Id. As such, "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). In its February 2021 remand, the Board specifically requested that the AOJ contact the appellant and request that she identify any outstanding evidence pertinent to the Veteran's employment status from May 2011 to February 11, 2016, to include evidence showing that his occupation may have been less than substantially gainful at any point during that period. In response, the appellant did not provide any specific information to support this aspect of her claim. While the Board is sympathetic to the appellant's claim, the Board has no authority to grant claims on an equitable basis; rather is constrained to follow specific provisions of law. 38 U.S.C. § 7104(c). The Board emphasizes, however, that the denial of this period of the Veteran's TDIU claim for this period does not in any way diminish the Veteran's distinguished service, which is duly acknowledged and appreciated. In sum, the evidence of record does not show that the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful occupation from November 30, 2014, through from February 11, 2016. In fact, the evidence of record proves just the opposite. Thus, the appellant's claim for TDIU from November 30, 2014, to February 11, 2016, must be denied as the benefit of the doubt rule does not apply in this case. REASONS FOR REMAND TDIU From May 24, 2011, to November 29, 2014 The Board notes that it does not currently have sufficient information to adjudicate the appellant's claim for TDIU from May 24, 2011, to November 29, 2014 (date of underlying service connection psychiatric claim to the day prior to the start of his fulltime employment with the VA). It appears that the Veteran was working, but the facts are vague with respect to what type of job he did and his earnings during this period. For instance, in August 2011, the Veteran reported that he was doing "odd jobs" while awaiting to receive his Supplemental Security Income (SSI) due in September 2011. Further, in a September 2013 Veteran Readiness and Employment (VR&E) report, the Veteran reported social security earnings of $2,232 monthly, stating that he was able to meet his financial obligations, but was seeking to earn more income to live more comfortably. See, page 70 VR&E (received February 2017). His Social Security records also reflect that the Veteran received $2,232 monthly in 2012, $2,273 monthly in 2013 and $2,312 monthly in 2014. See, SSA Profile and Benefit Data (received November 2020). In this regard, and pursuant to the Board's previous request, the AOJ contacted the appellant and requested that she identify any outstanding evidence pertinent to the Veteran's employment status from May 24, 2011, to February 11, 2016, to include evidence showing whether the Veteran's occupation may have been less than substantially gainful at any point during that period, and the appellant did not respond to that aspect of the remand when she submitted her response in March, 2021. Since the appellant may have been confused about the nature of the request, the Board will give her one more opportunity to provide additional supporting evidence for the remaining period on appeal. Given these facts, the appellant is encouraged to fully cooperate with VA's requests in its effort to substantiate this period of appeal, as VA's duty to assist her in doing so is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. Resend the appellant a letter regarding the criteria necessary to substantiate a claim for TDIU, including a VA Form 21-8940 Application for Increased Compensation Based on Unemployability from May 24, 2011, to November 29, 2014, with instructions for completion, particularly, requesting evidence showing whether the Veteran's occupation may have been less than substantially gainful at any point during that period, such as his earnings from odd jobs (various small jobs), and the type and nature of any job the Veteran engaged in during this period. The appellant is encouraged to coordinate with her agent so that the requested information is provided. The appellant is hereby informed that she has a duty to cooperate in the development of her appeal, and that her failure to report to do so without good cause may result in the denial of her appeal. Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 C.F.R. § 3.655. 2. For any identified employer from May 2011 to November 2014 listed on the submitted VA Form 8940, the AOJ must contact and request that they complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Such employer(s) must also be requested to outline an accomodation(s) that the Veteran was provided in connection with the functional impairment associated with his service-connected psychiatric disability and/or his service-connected PTSD disability. 3. After the above development, and any additional development deemed necessary has been completed, the RO should readjudicate the appellant's remaining TDIU claim for the period of May 24, 2011, to November 29, 2014. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.