Citation Nr: 22016895 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 15-09 792 DATE: March 23, 2022 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran has been employed full-time throughout the period on appeal and was engaged in more than marginal employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU due have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2003 to March 2006. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities In a September 2021 decision, the Board determined that entitlement to a TDIU was raised by the Veteran as part of his claim for an increased rating for his service-connected lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating). In this regard, the Veteran, through his representative asserted that he has marked interference with his employment and difficulty maintaining employment due to his lumbar spine disability. See August 2021 Appellate Brief. Additionally, during a May 2021 examination of the Veteran's lumbar spine, the examiner also noted an impact on the Veteran's ability to hold a job. As the Veteran had not submitted a formal claim for a TDIU, the Board remanded this matter in September 2021 to request that he submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran was sent the aforementioned forms in October 2021. See Custom 5103 Notice. To date, the Veteran has not completed either form. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran's earned 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. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Where the evidence establishes that a Veteran is substantially gainfully employed on a full-time basis, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Throughout the period on appeal, the Veteran has consistently reported that he works full-time as a police officer. The Veteran's private treatment records indicate that he began working as a police officer in 2007 and has continued to do so throughout the appellate period. See Medical Treatment Record - Non-Government Facility, submitted November 1, 2021. A November 2020 VA treatment record shows the Veteran's reports of working in the investigation unit of the Sheriff's office. During the Veteran's October 2021 VA examination, he reported working as a detective in 2013, then working in various law enforcement capacities in the Sherriff's office, being promoted 3 times at his job, and currently working as a commander in the investigations unit. Additionally, during a January 2022 examination, the Veteran reported that he currently works as a police officer in Colorado Springs, CO. The Veteran has never contended, and neither does the evidence of record suggest, that he was ever unemployed at any point during the period on appeal. Moreover, as the Veteran has not submitted a VA Form 21-8940 or VA Form 21-4192 as requested, there is no further information to consider surrounding the Veteran's employment status during the appellate period. There has been no allegation that his employment was in a protected environment such that his earnings should be considered marginal. The Board acknowledges the Veteran's reports that he experiences difficulty with both prolonged sitting and standing and that he must use a "sit-stand desk" at work, and finds these reports credible. See Correspondence, submitted September 29, 2021. However, the Board finds that such impairment and the related accomodation are contemplated by the Veteran's 40 percent rating for his lumbar spine disability, and do not constitute a protected environment under 38 C.F.R. § 4.16(a). This finding is also made in consideration of the Veteran's reported work history, which included duties as a patrol officer during the appellate period. See October 2021 VA Examination. The Veteran's own statements and the evidence of record demonstrate that he was gainfully employed during the entirety of the appellate period, with no evidence that his employment was marginal or in a protected or sheltered environment. Because the evidence shows that the Veteran was able to maintain gainful employment during the entirety of the appellate period, his claim for a TDIU must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); 38 C.F.R. § 4.16(a). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.