Citation Nr: 25004498 Decision Date: 04/02/25 Archive Date: 04/02/25 DOCKET NO. 19-03 428A DATE: April 2, 2025 ORDER Entitlement to a total disability rating based on individual unemployability is denied. FINDING OF FACT The Board cannot find that the evidence is in at least approximate balance as to whether the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability have not been met. 38 U.S.C. §1155, 5107; 38 C.F.R. §§3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION This claim originates from an appeal of an August 2018 rating decision that granted service connection for other specified depressive disorder ("depressive disorder") and assigned an initial rating of 10 percent. The Veteran appealed, seeking a higher initial rating and an earlier effective date. In February 2021 the Board granted the Veteran an effective date of September 12, 2013, for service connection for his depressive disorder and remanded the rating claim. After RO decisions in April 2021 and December 2023, and a Board decision in May 2023, the Veteran's depressive disorder rating claim was resolved. However, in May 2023 the Board also determined that matter of entitlement to a total disability rating based on individual unemployability had been raised by the record, consistent with Rice v. Shinseki, 22Vet. App.447 (2009) and remanded that issue to obtain a VA examination addressing the Veteran's level of occupational function during the period on appeal. In October 2024 the Board found that there had been substantial compliance with its May 2023 remand directives but found that additional remand was necessary. In October 2024 the Board directed that the Veteran be afforded the opportunity to submit a completed TDIU claim form; and that the Veteran's TDIU claim should be adjudicated in the first instance by the RO. The record reflects that the RO provided the Veteran with TDIU claim forms and instructions in October 2024 and November 2024, and adjudicated the Veteran's claim in February 2025. Accordingly, the Board finds that there has been substantial compliance with its October 2024 remand directives and adjudication of the Veteran's TDIU claim on the merits is appropriate. 1. Entitlement to a total disability rating based on individual unemployability is denied. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The Board acknowledges now, as it did in October 2024, that the schedular criteria for entitlement to TDIU are met from March 2017 onward. However, the record reflects that the Veteran was employed, to at least some degree, for some or all of the period on appeal. The Veteran had active service from July 1969 to May 1971, with additional periods of reserve service. He worked for approximately 25 years at a national cemetery before retiring in 2009. 11/07/2018, Disability Benefits Questionnaire (DBQ) - Veteran Provided at 11; 12/04/2023, CAPRI at 11 In November 2018 VA received an evaluation and report from a non-VA mental health professional which reflected the Veteran's statement that he began working security in 2009 and had continued to do so, on at least a "part time" and "sporadic" basis since that time. 11/07/2018, Disability Benefits Questionnaire (DBQ) - Veteran Provided at 11. The provider also documented the Veteran's report that he worked part time with a sheriff's department. Id. The non-VA provider opined that the Veteran was unable to work full time due to his service connected depressive disorder. Id. At a March 2021 VA examination, the Veteran reported that he continued to work doing security part time, which he had been doing "for several years." 03/24/2021, C&P Exam at 4. In November 2022 the Veteran reported that he worked as a security guard at a sports stadium. 02/08/2024, CAPRI at 91. In February 2024 the Veteran reported to VA treating providers that he worked as a deputy sheriff and that he had worked "long hours several days in a row... during Mardi Gras." 03/04/2025, CAPRI at 10, 12. In May 2024 the Veteran reported experiencing job stress but that he "[could] handle it." 06/27/2024, CAPRI at 17. At a June 2024 VA examination, the Veteran reported that working in a crowded environment (such as his "last job" as stadium security) could exacerbate his anxiety and irritability. The examiner stated that periods of low mood and anxiety could interfere with the Veteran's ability to concentrate and complete tasks. The examiner also stated that the Veteran experienced disrupted sleep, resulting in daytime fatigue which could impair concentration and his ability to complete tasks. 06/30/2024, C&P Exam at 6. In October 2024 and November 2024, the RO requested that the Veteran complete and return a TDIU claim form. The record does not reflect that the Veteran responded to either of these requests. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence". Wood v. Derwinski, 1 Vet. App. 190, 193 (U.S. 1991). The Board acknowledges that the Veteran's service connected disabilities may have some impact on his occupational function. However, the record reflects that the Veteran has worked consistently, even if not full time, as a security guard and/or member of a sheriff's department since 2009. There is no evidence relating to whether the income derived from this work does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. In light of the evidence discussed above, the Board cannot find that the evidence is in at least approximate balance as to whether the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment during the period on appeal. Accordingly, the Board concludes that the criteria for entitlement to a total disability rating based on individual unemployability are not met, and the same is hereby denied. 38 U.S.C. §1155, 5107; 38 C.F.R. §§3.340, 3.341, 3.400, 4.16(a). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.