Citation Nr: 1343157 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 05-32 891 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU) by reason of service-connected disability. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the RO. In December 2011 and July 2013, the Board remanded the Veteran's claim for additional development of the record. The case is once again before the Board for the purpose of appellate disposition. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT The service-connected disabilities are shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating on a extraschedular basis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.321, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). "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." See 38 C.F.R. § 4.16(a) (2013). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet.App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet.App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. 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 non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, 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 ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2013). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case should be submitted for extraschedular consideration. It is significant to note, however, that the Court has held that the Board is precluded, in the first instance, from addressing the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321, but that once the Board properly refers an extraschedular rating issue for review the appellant may continue to appeal the extraschedular rating aspect of this claim. See Floyd v. Brown, 9 Vet.App. 88, 96-97 (1996). Analysis The Veteran has been awarded service connection for sleep apnea, rated 50 percent disabling and hepatitis C, rated 20 percent disabling. His combined disability rating is 60 percent. He does not meet the schedular criteria for TDIU. The Veteran is shown to have worked for a few months as a service representative. Before that, he worked as a warehouse manager for a beauty supply company for several years. Prior to that, he was employed as a cook. See the March 2009 VA Form 21-8940. He attended college and received a degree in Criminal Justice. See the June 2010 VA examination. He receives Social Security Disability Benefits as the result of lumbar degenerative disc disease with right leg radiculopathy and hepatitis. The Administrative Law Judge who granted Social Security benefits in 2002 determined that hepatitis was an impairment, although the evidence actually did not show that it had any effect on employment at that time. During the current appeal period, the severity of the service-connected hepatitis C was addressed by VA in March 2009. At that time, the VA examiner opined that hepatitis C prevented all employment other than a part-time office work with minimal physical activity. Thus, the March 2009 examiner opined that the Veteran was unable to engage in substantially gainful employment as the result of his service-connected hepatitis C. In March 2012, a VA examiner opined that the service-connected sleep apnea had no effect on the Veteran's ability to work. During an October 2012 VA examination, the Veteran stated that, every six weeks, his service-connected hepatitis C would result in episodes of arthralgia and myalgia that lasted from one to two weeks. The VA examiner noted that, while the Veteran could perform light and sedentary work when he was not experiencing symptoms, he would have frequent absenteeism due to his hepatitis C symptoms. In July 2013, the Board noted that, while the Veteran did not meet the schedular criteria for a TDIU rating, the claims file included an opinion from a VA examiner that indicated that the service-connected Hepatitis C prevented him from performing substantially gainful employment and an additional opinion from a VA examiner which indicated that there would be significant restrictions and periods of incapacitation. As a result, the Board requested that the Veteran's claim be referred to the Director of the Compensation Service for consideration of an extraschedular TDIU rating. Following the Board's remand, the AMC drafted a proposed decision which recommended that the Veteran's claim for a TDIU rating be granted on an extraschedular basis. Significantly, the AMC noted that the record indicated that "there [was] a consensus that [the Veteran] [was] only able to work part-time with specific limitations." In a memorandum received in October 2013, the Director of the Compensation Service determined that "the evidence [did] not support entitlement to TDIU on an extraschedular basis." Specifically, the Director noted that a VA examiner reported that the Veteran's sleep apnea did not affect his ability to work. It was also noted that the October 2012 VA examiner stated that the Veteran "ha[d] suffered an incapacitating episode in the past 12 months lasting 1-2 weeks" and opined that hepatitis C does not preclude employment. Upon review, the opinion from the Director of the Compensation Service did not address the impact the service-connected Hepatitis C would have due to absenteeism. As noted, during the October 2012 VA examination, the Veteran reported that his Hepatitis C results in arthralgia/myalgia episodes every six weeks which lasted from 1-2 weeks. The VA examiner reported that, during these episodes, he was unable to perform any physical activity. While the opinion from the Compensation Service correctly noted that the Veteran could work when he was not experiencing hepatitis C symptoms, the October 2012 examination report stated that the Veteran's symptoms occurred every six weeks and would prevent him from working for as much as 3 months per year. Based on these reasons, the Board concludes that a TDIU rating is warranted on an extraschedular basis. The benefit sought on appeal is accordingly granted. ORDER Entitlement to a TDIU rating on an extraschedular basis is granted, subject to the regulations governing the award of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs