Citation Nr: 25002804 Decision Date: 02/26/25 Archive Date: 02/26/25 DOCKET NO. 14-28 982 DATE: February 26, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not reflect that the Veteran has been unable to engage in substantially gainful employment due to his service-connected disabilities as he is employed. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1991 to March 1995. The Veteran appealed a September 2017 rating decision by the Agency of Original Jurisdiction (AOJ). In a September 2021 Board decision, the Board denied the Veteran's claim. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In August 2022, the Court granted a Joint Motion for Remand (JMR) and remanded the case to the Board for further proceedings consistent with the JMR. In July 2023, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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 stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The July 2023 Board decision remanded the issue in order to get clarification from the Veteran of his employment history as the record detailed conflicting evidence as to whether he may still be working full-time with USPS. During the remand period, multiple pieces of correspondence were sent to the Veteran, including forms requesting information regarding his employment. See, e.g., April, July, and December correspondence. However, the Veteran and his representative have not replied. Importantly, a response from the National Personnel Records Center (NPRC) indicated that the Veteran was still an active employee with USPS. See August 2025 correspondence. The Board notes that the April 2019 VA Form 21-8940 indicated that the Veteran was presently working full-time for USPS since 1996 and making over $50,000 per year. Such a wage and employment would constitute a substantially gainful occupation, as established by the U.S. Department of Commerce, Bureau of the Census. See https://www.census.gov/hhes/www/poverty/data/threshold/ Although the Veteran noted pain impacts his ability to perform the job and that he has to take days off of work, despite any noted disciplinary action, the evidence still suggests that the Veteran is able to perform his job satisfactorily as he currently remains employed full-time, several years after the April 2019 VA Form 21-8940. The evidence also does not detail any special treatment as to make the Veteran's job at USPS a protected environment or in any way shielded in some respect from competition in the employment market. See LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). (Continued on the next page) Therefore, given a lack of response from the Veteran on remand, the fact that the Veteran continues to work full-time at USPS, making a wage well beyond the poverty threshold, the Board finds that the Veteran is gainfully employed. As such, entitlement to TDIU is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zheng, Andrew 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.