Citation Nr: 21073083 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-36 492 DATE: December 7, 2021 ORDER Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) from August 9, 2012 is granted. REMANDED Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to August 9, 2012, is remanded. FINDING OF FACT From August 9, 2012, the Veteran has been precluded from securing and following a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating from August 9, 2012 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from September 1967 to April 1969. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is of record. This matter was, in pertinent part, remanded by the Board of Veterans' Appeals (Board) for further development in February 2020. The requested development has been performed and the matter is ready for appellate review. TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a Veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2020). In this regard, 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 that 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 a Veteran's actual industrial impairment. In a pertinent precedent decision, 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 for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 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. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). As of August 9, 2012, service connection was in effect for coronary artery disease, rated as 60 percent disabling; PTSD, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; left lower extremity peripheral neuropathy, rated as 10 percent disabling; right lower extremity peripheral neuropathy, rated as 10 percent disabling; and hearing loss rated as noncompensable. The Veteran's combined evaluation was 80 percent. Based upon the above assigned disability evaluations, the Veteran met the schedular criteria for consideration under 38 C.F.R. § 4.16(a) as of this date. The Veteran maintains that he is unemployable as a result of his service-connected disabilities. At the time of a December 2011 VA examination, the Veteran's DM was noted to require stable work times, nonvarying shifts, and the ability to take a break when needing to eat or check his blood sugar. The Veteran also needed predictable physical requirements in his job so that his caloric intake could match his output. At the time of a September 2012 VA heart examination, the Veteran was noted to have dyspnea and angina with physical activity, so he would have difficulty with any employment requiring physical activity. The Veteran's work history demonstrates that he has only performed physical labor, having been employed as a millworker for many years. The Board notes that for the time period in question, the Veteran was shown to not be able to work in the field in which he had training and experience, he had a lack of training and education in other fields of work, and his service-connected disabilities prevented him from obtaining and securing substantially gainful employment. The weight of the evidence, including the examiners' findings, along with the Veteran's statements and work history, demonstrate that he met the criteria set forth in § 4.16(a), and that a TDIU based upon service-connected disabilities is warranted on a schedular basis since August 9, 2012. REASONS FOR REMAND As it relates to the TDIU claim, the Board notes that all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular evaluation. 38 C.F.R. § 4.16(b). Prior to August 9, 2012, the Veteran did not meet the criteria for consideration under 38 C.F.R. § 4.16(a). Given the foregoing, referral of the case to the Director, Compensation Service is warranted. The matters are REMANDED for the following action: Refer the claim to the Director, Compensation Service on the issue of entitlement to an TDIU, to include on an extraschedular basis prior to August 9, 2012 under 38 C.F.R. § 4.16(b). All findings and opinions should be associated with the claims folder. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.