TDIU, "MARGINAL EMPLOYMENT"
/Ortiz-Valles v. McDonald, docket no. 14-2540 (May 20, 2016)
HELD: the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.”
SUMMARY: In determining whether a claimant is entitled to a total disability rating based on individual unemployability (TDIU), the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.” The regulation defines “marginal employment” as one example “of what is not substantially gainful employment.” Therefore, “when the facts of the case reasonably raise the issue of whether the veteran’s ability to work might be limited to marginal employment,” VA must address this issue and “explain why the evidence does not demonstrate that the veteran is incapable of more than marginal employment.”
