Citation Nr: A25035140 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210614-166258 DATE: April 16, 2025 ORDER The discontinuance of total disability rating based upon individual unemployability (TDIU) from December 1, 2020, was proper. FINDINGS OF FACT 1. The Veteran did not submit a completed VA Form 21-4140 to the VA within the required time period in order to retain his TDIU benefits. 2. The Veteran provided evidence that he was employed during the years of 2019 and 2020 but did not provide relevant salary information to show that any earned income did not exceed the poverty threshold guidelines. CONCLUSION OF LAW The criteria for discontinuance of TDIU have been met, and discontinuance of TDIU was proper. 38 U.S.C. § 501; 38 C.F.R. §§ 3.103, 3.501, 3.652. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1985 to November 1988 and from January 1990 to December 1990. The rating decision on appeal was issued in November 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the November 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.). 1. The discontinuance of TDIU from December 1, 2020, was proper. The Veteran, through his representative, contests the discontinuance of his TDIU benefit effective December 1, 2020. See November 2021 Appellate Brief. When reducing an award of TDIU, VA must ensure the proper procedural safeguards under 38 C.F.R. § 3.105(e) are met. 38 C.F.R. § 3.343(c)(1). Following initial notice, a Veteran has 60 days to provide the requested information. If it is not provided within that time period, a proposed decision is issued to notify the Veteran, and to allow an additional 60 days for response. If certification is still not received, the proposed reduction is put into effect. 38 C.F.R. § 3.652. Once the procedural requirements of 38 C.F.R. § 3.105(e) are met, actual employability must be established by clear and convincing evidence. 38 C.F.R. § 3.343(c)(1). The "clear and convincing" standard requires that capacity for work be proven to a "reasonable certainty," but not necessarily be "undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). Further, if a Veteran with a TDIU begins to engage in a substantially gainful occupation after January 1, 1985, the veteran's rating may not be reduced solely based on such occupation unless the veteran maintains the occupation for a period of twelve consecutive months. Temporary interruptions in employment that are of short duration shall not be considered breaks in otherwise continuous employment. 38 C.F.R. § 3.343 (c)(2). A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Substantially gainful employment does not include marginal employment, which is generally 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. Marginal employment may also be held to exist on a fact found basis, including 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. 38 C.F.R. § 4.16 (a). In this case, entitlement to TDIU was granted in a March 2017 rating decision and made effective October 28, 2015. The Veteran was sent correspondence in February 2019, notifying him of the old and new process to verify employment status for those individuals in receipt of TDIU. This letter informed him that employment status is used to determine continued eligibility to this benefit. The letter advised that in the new process, VA uses a data wage match with the Social Security Administration (SSA) to identify veterans in receipt of IU who also have earned wages above the poverty threshold, as defined by the U.S. Census Bureau, for the previous calendar year. Notably, he was informed that VA will now only send a VA Form 21-4140, Employment Questionnaire, and due process letter, to those veterans identified in the wage match. In a September 2020 letter, VA notified the Veteran of its intent to discontinue his TDIU benefits based on evidence received from SSA, which purportedly showed that he had earned wages above the poverty threshold for calendar year 2019. The Veteran was afforded 60 days to respond. In a November 2020 decision, the AOJ discontinued the Veteran's entitlement to TDIU effective December 1, 2020. The Board thus finds that the procedural requirements for notice of reduction or termination of a disability rating were met in this case and there was no due process violation. Turning to the factual propriety of the reduction, VA notified the Veteran of its intent to discontinue his TDIU benefits based on evidence received from SSA that the Veteran had earned wages above the poverty threshold for calendar year 2019. The September 2020 letter instructed the Veteran to complete and return the attached VA Form 21-4140, Employment Questionnaire, and VA Form 21-4138, Statement in Support of Claim. He was also asked to submit evidence that supported any of the following applicable scenarios: (1) if he filed taxes jointly, his spouse's W-2; (2) if he is no longer employed, a statement from his former employer providing the date of termination; (3) if he has not been employed for a continuous year, a statement from his employer of the dates employed. The record shows the Veteran submitted three documents in October 2020, in response to the September 2020 VA letter. He submitted a signed and dated VA Form 21-4140. On this form, the Veteran did not check box #10 which asked, "WERE YOU EMPLOYED BY VA, OTHERS, OR SELF EMPLOYED AT ANY TIME DURING THE PAST 12 MONTHS?" Rather, he wrote "N/A - Permanent & Total." In Section II- Employment Certification, the Veteran wrote, "Permanent & Total * See Attached" and included several "N/A" notations. The Veteran also submitted a copy of the September 2020 VA letter with handwritten annotations on the first page that stated, "Permanent & Total." He also submitted a copy of a January 10, 2019, VA letter that showed a summary of benefits he received from VA. In the November 2020 decision on appeal, the AOJ continued the Veteran's entitlement to TDIU effective December 1, 2020. Along with the Veteran's June 2021 VA Form 10182, Notice of Disagreement, he submitted a written statement indicating that he worked for Decker Truck Line from March 2019 to September 2019 (and was injured on the job there resulting in a worker's compensation claim). He also reported that he remained under doctor's care in connection with the worker's compensation claim until May 2020. He submitted a letter from Decker Truck Line's insurer regarding his worker's compensation claim. The Veteran further wrote that although he was under a doctor's care from September 2019 to May 2020, 'in his desire to continue to try to work in meaningful employment,' he secured employment with DeBoer Transportation from September 2019 to January 2020. In short, the AOJ discontinued the Veteran's TDIU based on information received from SSA's wage data match program, which showed that the Veteran had earned wages above the poverty threshold for calendar year 2019. The Board acknowledges that the SSA wage data relied on by the AOJ is not of record; the Board also acknowledges the Veteran's contentions that he is unable to work. Unfortunately, the Veteran has not provided the information requested by VA, namely information from his former employers providing the dates employed and dates of termination. Without such information, the Board is unable to verify whether he was employed for 12 consecutive months. The Veteran also has not provided any tax filings or other similar evidence to show that his SSA-reported wages were not in fact above the poverty threshold for calendar year 2019. The Board is thus presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In the absence of this information, and with the Veteran's lay statements that he in fact was employed by two companies during 2019 (and 2020) are clear and convincing evidence of his capacity for work during the year in question. Finally, the Board notes that the Veteran was not confused about the reporting process. The record reflects that he correctly completed a VA Form 21-4140 in June 2018. The Veteran was properly made aware of the need to certify his employment and income status on a VA form 21-4140, in February 2019 and in September 2020. He did not do so, even after termination of payment of his benefit by way of the November 2020 rating decision, within the 90-day Evidence Submission window. In sum, the record shows that VA followed the proper procedures in discontinuing the Veteran's TDIU. See 38 C.F.R. § 3.103. The Veteran failed to sufficiently certify his continued eligibility to TDIU, and as such, his TDIU was discontinued. Accordingly, the discontinuance of TDIU from December 1, 2020, was proper and the appeal is denied. As indicated, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, Attorney Advisor 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.