Citation Nr: 25003989 Decision Date: 03/25/25 Archive Date: 03/25/25 DOCKET NO. 18-03 849 DATE: March 25, 2025 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 13, 2022, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from October 2003 to May 2006. He was awarded a Combat Action Ribbon. In May 2016, the Veteran filed an initial claim for service connection for a mental health condition and also submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability. In an October 2016 rating decision, a Department of Veterans Affairs (VA) regional office assigned a 50 percent rating for his psychiatric disorder and denied entitlement to individual unemployability. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2021. A transcript of the hearing is of record. In December 2021, the Board granted an increased rating of 70 percent for the psychiatric disorder, throughout the period on appeal, and denied entitlement to individual unemployability throughout the period on appeal. The Veteran did not challenge the portion of the Board's decision which denied a rating in excess of 70 percent. However, the Veteran appealed the denial of TDIU to the Court of Appeals for Veterans Claims (Court). In August 2024, the Court issued a Memorandum Decision setting aside the Board's denial of a TDIU and remanding the appeal for further adjudication consistent with the decision. The Board notes that subsequent to the Board's December 2021 decision on appeal herein, the RO awarded the Veteran a TDIU with an effective date of May 13, 2022. The TDIU was based on the Veteran's psychiatric disorder, his only service-connected condition. As such, the Veteran is already in receipt of the maximum benefit for that portion of the appeal period, and his appeal for a TDIU is moot from that date. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Accordingly, the remaining issue on appeal before the Board is whether the Veteran is entitled to a TDIU prior to May 13, 2022. 1. Entitlement to a TDIU prior to May 13, 2022 is remanded. As noted above, the Veteran was awarded a TDIU with an effective date of May 13, 2022. The issue before the Board is thus whether the Veteran is entitled to a TDIU prior to May 13, 2022. In its December 2021 decision denying TDIU, the Board found that the Veteran's employment was not marginal, i.e., in a "protected environment," and provided a definition of that term as proposed by VA in the case of Arline v. McDonough, 34 Vet. App. 238 (2021). However, subsequent to the Board's decision, the Court issued a precedential opinion in the cases of LaBruzza & McBride v. McDonough, 37 Vet. App. 111 (2024), which defined the term "employment in a protected environment" differently than the Board had done so. Specifically, the Court defined this term as "a lower income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." Id. The Court highlighted the examples provided in § 4.16(a) of a family business or sheltered workshop, but noted that these examples were nonexhaustive, and added that not all family businesses might qualify-the Veteran's employment must be "excepted" in some way from the competitive labor market. The Court also rejected VA's argument that employment in a protected environment "requires evidence of an employer's benevolent intent or motivation for hiring, promoting, or continuing to employ a veteran" and agreed "to some extent" with the appellant's argument that employment in a protected environment "takes into account workplace accommodations required by the ADA (Americans with Disabilities Act)." But the Court cautioned that these general principles are neither categorical nor dispositive and while "[t]hey will guide most cases... the Board may consider any individualized factor or evidence that tends to clarify whether a specific position was shielded in some respect from competition in the employment market." Significantly, the Court added, "of course, the income that a veteran earns from employment must be relatively low to qualify as 'in a protected environment.'" Indeed, the Court noted that "facts-found marginal employment, including employment in a protected environment, must be read narrowly so that it does not utterly supplant the general rule that annual income, limited by the poverty threshold, is a key criterion for determining TDIU eligibility." The Court thus stated that earned annual income must factor into the protected-environment inquiry. In vacating the Board's December 2021 decision, the Court noted the Parties agreed that remand was warranted so that the new definition, as promulgated by the Court in LaBruzza, could be applied. However, the Court also found that the Board had erred because the Board hearing officer did not adequately inform the Veteran of the standard the Board would be using to determine whether the Veteran's employment was marginal, i.e., constituted employment in a protected environment. See Bryant v. Shinseki, 23 Vet. App. 488, 497 (2010). Now, however, as noted above, the Board is required to apply the standard promulgated by the Court in LaBruzza, so any prior failure to inform the Veteran of a no-longer-applicable standard used in Arline is essentially harmless. The Veteran is specifically advised that the Court's definition of "employment in a protected environment," as announced in LaBruzza and discussed above, will be the standard considered in evaluating whether the Veteran is entitled to a TDIU from May 6, 2016, to May 13, 2022. In that regard, the Board finds it cannot apply the LaBruzza standard here without remanding the appeal for further development. While the Board's prior December 2021 decision accepted the Veteran's lay reports of his income, the Board finds that in light of LaBruzza, and the Court's decision remanding this appeal, it is necessary to obtain the complete information regarding the Veteran's work history and related income. The Veteran's income information for the period on appeal is incomplete and has not been clearly documented in the record. Additionally, while the AOJ granted a TDIU from May 13, 2022, based on the Veteran's report of when he stopped working, the record is unclear as to whether the Veteran's employment decreased leading up to that point. The LaBruzza decision compels the Board to obtain full and accurate income information for each year for which TDIU is being claimed. Additionally, while VA Forms 21-4192 have been received from some of the Veteran's previous employers, no form was ever received from Tile Craft, the employer that the Veteran has specifically contended constituted his marginal employment, and for whom he testified having worked for the past four years during his Board hearing in July 2021. The Board also notes that the Veteran submitted a VA Form 21-8940 in November 2022 which stated his employment at Tile Craft ended in October 2021, after which point he reported starting his own business before ceasing work in May 2022. The Tile Craft business owner has not submitted any information to the VA regarding the Veteran's earned income during the years of his employment, nor any information that would otherwise assist in determining whether the Veteran's employment was "shielded in some respect from competition" in the labor market. The matters are REMANDED for the following action: 1. Request that the Veteran submit information verifying his earned income for the years from 2016 through 2022, such as copies of tax returns, W-2 forms, or an earnings statement from the Social Security Administration. 2. If the Veteran is unable to submit the requested and complete income information for any year(s) in question, the AOJ should obtain records from the Social Security Administration to verify the Veteran's annual income reported to SSA, for any years the Veteran was unable to provide complete income information between 2016 and 2022. 3. Request the Veteran provide contact information for his former employer from May 2017 through October 2021, listed in the record as Tile Craft, with owner listed as Mr. W.G. Then, send this former employer a VA Form 21-4192 and request it be completed and returned expeditiously. 4. Once all information is received, readjudicate the issue of entitlement to a TDIU prior to May 13, 2022. If the benefit sought remains denied, issue a Supplemental Statement of the Case (SSOC), and return the appeal to the Board. The Veteran is advised that he may also submit any additional evidence or argument relating to his past employment circumstances from May 2016 to May 2022, and/or relating to his earned income during that same time period. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Medley, Amanda T. 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.