Citation Nr: 21067458 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-30 260 DATE: November 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT For the entire appeal period, the Veteran's service-connected disabilities likely preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1985 to June 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Board hearing. The transcript of the hearing is of record. By way of background, in December 2020, the Board denied the claim for increased rating for a cervical spine disability and entitlement to a TDIU. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2021, the Court partially vacated the Board decision and remanded the appeal for further proceedings. TDIU 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. 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. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided 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). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Entitlement to a TDIU is granted. At the outset, in the October 2019 Board decision, the Board found that the issue of entitlement to a TDIU was raised by the record. As such, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for entitlement to a TDIU is considered part and parcel to the increased rating claim for cervical spine disability, which was filed on July 24, 2014. The Board notes that the Veteran is service connected for cervicogenic headaches associated with status post cervical fusion rated at 50 percent effective July 24, 2014; depression and/or anxiety rated at 50 percent effective July 24, 2014; cervical spine disability rated at 30 percent effective November 25, 2008; cervical radiculopathy of the right upper extremity rated at 10 percent effective February 27, 2009, and 20 percent effective January 21, 2020; and sixth thoracic vertebrae associated with status post cervical fusion rated at 10 percent effective November 25, 2008 with a combined rating of 90 percent from July 24, 2014. The Veteran met the schedular criteria effective July 24, 2014, the date of the application. 38 C.F.R. §§ 4.16(a)(3), (4), 4.25. A review of the records shows that the Veteran has a master's degree with a past work history of being a petroleum landman, handyman, economist, and history professor. See May 2015 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; March 2018 VR&E General; and June 2019 Hearing Transcript. The Veteran stated that his service-connected disabilities rendered him unemployable as of January 2009. (Continued on the next page) After resolving reasonable doubt, the Board finds that the Veteran meets the requirements for entitlement to a TDIU. The claim is granted. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.