Citation Nr: 1805420 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 16-58 367A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) as a result of service-connected disabilities, to include on an extraschedular basis. ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (7). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from August 1961 to August 1965. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction has since been transferred to the RO in Montgomery, Alabama (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. All records are now in these electronic systems. In September 2017, the Board remanded this appeal in order to schedule the Veteran for a videoconference hearing. In December 2017, the Veteran withdrew his hearing request. The issue of entitlement to TDIU on an extraschedular basis is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected disabilities do not have a combined rating of 70 percent or more. CONCLUSION OF LAW The scheduler criteria for a TDIU rating due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Veteran has specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). TDIU Analysis A total disability rating based upon individual unemployability may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating based upon individual unemployability. 38 C.F.R. §§ 3.341(a) , 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran seeks entitlement to TDIU based on his service-connected posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss. See February 2015 Application for Increased Compensation Based on Unemployability. For the relevant time period, he is service-connected for PTSD rated as 50 percent disabling; tinnitus rated as ten percent disabling; diabetes mellitus rated as ten percent disabling; and bilateral hearing loss rated as noncompensable. His combined disability rating is 60 percent. See 38 C.F.R. § 4.25. Therefore, the Veteran's combined service-connected disabilities do not render him eligible for TDIU under the scheduler percentage requirements contemplated by VA regulations. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Entitlement to TDIU on an extraschedular basis is addressed in the remand below. ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities on a scheduler basis is denied. REMAND Although the Veteran does not meet the scheduler criteria for consideration of TDIU, the Board must also consider whether referral for extraschedular consideration is warranted. Such consideration is warranted when a veteran fails to meet the percentage requirements for eligibility for a total disability rating set forth in 38 C.F.R. § 4.16(a). Under the extraschedular provision of 38 C.F.R. § 4.16(b), a claimant must show that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to warrant a referral to the Director, Compensation Service, for extraschedular consideration. In this case, the record reflects that the Veteran was last employed as a piping technical assistant in May 2010, and was terminated for "performance." Prior to that, he had worked as a field engineer for several years, followed by some temporary projects. See February 2015 Requests for Employment Information. He completed some college courses, including computer design and business administration courses. See Veteran's Resume. The claims file contains a July 2013 vocational assessment. During the assessment, the counselor reviewed the Veteran's claims file and work history. The counselor determined that service-connected PTSD caused issues leading to termination, and tinnitus interfered with the Veteran's ability to hear alarms, causing a severe safety issue. Based on an analysis of the Veteran's work and educational background, among other things, the counselor determined that "achievement of employment is not reasonably feasible" due to his service-connected disabilities. Additionally, a February 2015 lay statement notes that the Veteran had increasing anger problems and was terminated after a heated argument at work. Under these circumstances, the claim is remanded for referral to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the Veteran's claim to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating for a total disability rating based upon individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(b). 2. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs