Citation Nr: 21001792 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 11-11 926 DATE: January 11, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. VETERAN’S CONTENTIONS The Veteran contends that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment, entitling him to a TDIU. FINDING OF FACT The Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction is currently with the RO in Philadelphia, Pennsylvania. This matter was previously before the Board at which time it was remanded for further development. Entitlement to a total disability rating based on individual unemployability A TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. The term "substantially gainful employment" means "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In other words, it is an occupation "that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . . ." Faust v. West, 13 Vet. App. 342, 356 (2000). See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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 (a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that service connection has been established for coronary artery disease (rated as 30 percent disabling); bilateral tinnitus (rated as 10 percent disabling); and gastrointestinal condition, to include erosive gastritis, diverticular bleed, and gastropathy, to include as secondary to prescribed medication for service-connected coronary artery disease (rated as noncompensable). The Veteran does not have one disability rated at least 60 percent disabling; or two or more disabilities, with 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 (a). Thus, the Veteran does not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). However, 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 are to be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards. Id. In response to a February 2020 Board remand, the RO referred the case to the Director of Compensation Service for extraschedular consideration in April 2020. As this step has been completed, the Board may address whether an extraschedular TDIU is warranted. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). After reviewing the evidence of record, the Board finds that the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. In this regard, the record reflects that the Veteran earned a high school diploma and a barber certification. Since service, the Veteran reported primary employment working as a self-employed barber. Regarding his current ability to obtain and maintain substantially gainful employment, the evidence of record includes a VA form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in which the Veteran indicated that he was only working part time. The evidence of record also includes multiple lay statements from the Veteran indicating that his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. In a March 2012 VA form 21-4138, Statement in Support of Claim, the Veteran stated that if he were physically able to, he would prefer to work a full-time day, but he wears out and tires easily as a result of his service-connected conditions. Turning to the medical evidence of record, private treatment notes document that a hemorrhaging episode greatly reduced the Veteran’s work hours; after hemorrhaging in 2010, the Veteran’s heart received additional minimal damage and he found it harder to do ordinary things such as working in the yard for a long time or working at his barbershop for more than 30 minutes at a time without resting between customers. A clinician indicated that after his initial heart attack in September 2001, the Veteran resumed working; however, at a slower pace, and after the massive bleed/hemorrhage in September 2010, he had to work on a reduced schedule because he tired easily, especially working with his arms above his head. A clinician also indicated that since the major bleed, the Veteran has been extremely weakened as his heart suffered a major blood loss. He was resuscitated on several occasions with blood pressure so low his heartbeat was undetectable. This caused some damage to his heart that was already damaged by a major heart attack in September 2001. This episode had caused him to find it hard to work for more than 30 minutes or so at a time, and as such, his work hours had been greatly reduced. Based upon the above, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. The Board acknowledges the Veteran’s part-time work as a barber. However, he reported a net income of $2,996.00 in 2011 and a monthly salary of approximately $800.00 in 2012, which amounts to a total of approximately $9,600.00. As the aforementioned incomes were below the poverty threshold for one person under the age of 65 established by the U.S. Department of Commerce, Bureau of the Census, the Board finds that the Veteran has not been substantially and gainfully employed since 2011. The Board also acknowledges the negative VA examiner opinions of record, including the March 2012 VA examiner opinion that there was no significant change to the Veteran’s cardiac condition preventing sedentary work. However, the ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based upon the above evidence, to specifically include the opinions/notes from the private clinicians, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. Moreover, the Board is not totally convinced that employment as a barber qualifies as sedentary employment. Lastly, the Board acknowledges that the Director of Compensation Service issued an October 2020 memorandum that weighed against the Veteran's claim for extra-schedular under 38 C.F.R. § 4.16(b). However, while the Director's decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, it is not binding. 38 C.F.R. § 4.16; Wages, 27 Vet. App. at 233 (The Board is authorized to award extraschedular TDIU after obtaining the Director's decision. The Board is not bound by Director's decision in deciding whether to award TDIU). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, Counsel 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.