Citation Nr: 21073238 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-15 672 DATE: December 7, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a disability rating higher than 70 percent for the service-connected mental disability is denied. Entitlement to a disability rating higher than 20 percent for the service-connected diabetes mellitus is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Hearing loss is not related to service. 2. Tinnitus is not related to service. 3. The service-connected mental disability is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but is not manifested by total occupational and social impairment. 4. The service-connected diabetes mellitus is manifested by the requirement of one or more daily injection of insulin and restricted diet, but not by regulation of activities. 5. The Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for a disability rating higher than 70 percent for the service-connected mental disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for a disability rating higher than 20 percent for the service-connected diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.119, Diagnostic Code 7913. 5. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from November 1963 to November 1967. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. An additional 60 days was granted for submission of evidence. A transcript of the hearing is associated with the claims file. The Veteran testified that he filed a Notice of Disagreement with the initial ratings assigned for his lower extremity neurological disabilities following the grant of service connection in March 2019. He identified a VA Form 20-0995 received in May 2019. The cover letter states that this is an official "Notice of Disagreement." However, this form is not a valid Notice of Disagreement. Under the Appeals Modernization Act (AMA), to constitute a valid Notice of Disagreement, VA Form 10182 must be used. The form submitted by the Veteran is a decision review request: supplemental claim form. That form allows a claimant to submit additional evidence and have the agency of original jurisdiction reconsider the claim. It does not trigger an appeal. The Veteran did not submit any additional evidence and no new decision was issued. To confuse matters, the agency of original jurisdiction responded to the VA Form 20-0995 by stating that these issues were part of an active appeal, identifying the Veteran's August 2017 Notice of Disagreement. However, that Notice of Disagreement was for the denial of service connection for lower extremity neurological disorders. These claims were subsequently granted in March 2019. The downstream matter of the ratings does not substitute for the service connection claim when granted. As noted above, the VA Form 20-0995 received in May 2019 is not a valid Notice of Disagreement with the March 2019 assignment of initial ratings. The Board makes no determination as to whether a new appealable decision should have been issued by the agency of original jurisdiction in response to the VA Form 20-0995, as the initial rating claims addressed by the VA Form 20-0995 are not before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service ConnectionLaw and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is a presumptive chronic disease. Tinnitus may be a presumptive disease if it is shown to result from acoustic trauma. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. 155. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for hearing loss. Entitlement to service connection for tinnitus. The Veteran entered active duty service in November 1963. A report of medical examination performed on November 14, 1963, reveals normal ears and hearing. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 5 LEFT 0 0 0 0 10 A report of medical examination performed on November 10, 1967 (service separation) reveals normal findings for the ears and hearing acuity. The Veteran was separated from active duty service on November 13, 1967. He filed the current claim in October 2016, almost 50 years later. A June 1972 VA examination revealed no significant abnormalities with respect to ears and hearing loss. A VA audio examination in January 2017 reveals the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 30 35 LEFT 25 20 30 45 65 Speech recognition was 96 percent in the right ear and 98 percent in the left ear. The examiner diagnosed mixed hearing loss in each ear and tinnitus. The examiner opined that the condition was less likely than not (less than 50 percent probability) related to service. The rationale was that records show no complaints of, diagnosis of, or treatment for hearing loss or tinnitus during service. The Veteran's hearing was normal at enlistment and normal at service separation. He was not diagnosed with hearing loss or tinnitus within one year of service separation. His tinnitus is a symptom of his hearing loss. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for hearing loss and tinnitus are not met. The service separation examination is probative evidence that the Veteran did not have hearing loss or tinnitus at that time. Moreover, the normal examination in June 1972, almost five years later, is probative evidence that he did not have hearing loss during the one-year presumptive period. Therefore, identifying the cause of hearing loss and tinnitus, which are of temporally remote onset from service, is not subject to lay observation, but requires competent medical evidence. This question is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). There is no opinion that purports to relate hearing loss or tinnitus to service. The opinion obtained by VA finds that hearing loss is not related to service, and that tinnitus is related to hearing loss. This removes tinnitus from the category of presumptive chronic diseases. Thus, even to the extent the Veteran may have experienced episodes of acute tinnitus in service, as his current chronic tinnitus is secondary to hearing loss rather than acoustic trauma, these episodes would not be sufficient to substantiate service connection for tinnitus on a presumptive basis. Accordingly, as one of the elements essential to service connection (nexus) is not met, the Board concludes that service connection for hearing loss and/or tinnitus is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased RatingsLaw and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms and the veteran's capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner's assessment of the level of disability at the moment of examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. Since August 4, 2014, VA has required a diagnosis of a mental disorder that conforms with the DSM5. For claims prior to that date, VA required a diagnosis that conformed with the DSMIVTR. See Schedule for Rating Disabilities: Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093, 45,093 94 (Aug. 4, 2014 (amending 38 C.F.R. § 4.125)). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Mental disorders are to be rated on the severity, frequency, and duration their respective signs and symptoms. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Entitlement to a disability rating higher than 70 percent for the service-connected mental disability. In a February 2012 rating decision, VA granted service connection for a mental disability and assigned an initial disability rating of 70 percent under Diagnostic Code 9411, effective October 26, 2011. The current appeal arises from an increased rating claim received at VA on October 26, 2016. Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 100 percent rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating, may be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). VA outpatient records show that the Veteran has consistently been found to be alert and oriented to person, place, time, and situation; his speech has been described as clear and articulate; he reported no hallucinations or delusions; and he has at times denied depression or anxiety. Notably a June 6, 2018, nursing assessment states that he has no history of mental illness. An emergency department note on the same day states that his mental status was within normal limits. After a review of all of the evidence, the Board finds that the criteria for a total rating are not met. The Veteran failed without good cause to report for a VA examination intended to evaluate his service-connected mental disability. When entitlement or continued entitlement to an increased rating cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be denied. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). Here, the examination was necessary to establish entitlement to the benefit, as the Veteran is seeking the maximum rating available. The benefit sought requires both total occupational impairment and total social impairment. The Board interprets total impairment as having no remaining function. However, VA outpatient records show that the Veteran has consistently been found to be alert and oriented to person, place, time, and situation; his speech has been described as clear and articulate; he reported no hallucinations or delusions; and he has at times denied depression or anxiety. Notably a June 6, 2018, nursing assessment states that he has no history of mental illness. An emergency department note on the same day states that his mental status was within normal limits. Thus there is substantial evidence that weighs against the claim. This needed to be resolved by medical evidence. The Veteran did not provide good cause for his failure. Therefore, VA law requires a denial of the claim. In the alternative, the Board cites the evidence above as demonstrating that the Veteran does retain some occupational and social functioning. Therefore, total occupational and social impairment is not substantiated. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (the Board has the fundamental authority to decide a claim in the alternative). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a disability rating higher than 20 percent for the service-connected diabetes mellitus. In a July 2015 rating decision, VA granted service connection for diabetes mellitus and assigned an initial disability rating of 20 percent under Diagnostic Code 7913, effective April 24, 2015. The current appeal arises from an increased rating claim received at VA on October 26, 2016. Under Diagnostic Code 7913, a 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. A 60 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 40 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities. A 20 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 10 percent rating is assigned for diabetes mellitus manageable by restricted diet only. After a review of all of the evidence, the Board finds that the criteria for a rating higher than 20 percent are not met. The Veteran failed without good cause to report for a VA examination intended to evaluate his service-connected diabetes mellitus. When entitlement or continued entitlement to an increased rating cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be denied. 38 C.F.R. § 3.655. Here, the examination was needed to establish the medical necessity of any restriction of activities, as the benefit the Veteran is seeking requires such evidence. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)) (medical evidence is required to establish that occupational and recreational activities have been restricted under Diagnostic Code 7913). The provisions of 38 C.F.R. § 4.21 do not apply to Diagnostic Code 7913, as the criteria are conjunctive and successive. Therefore, all criteria at each rating level must be met to permit a rating at that level; and 38 C.F.R. § 4.21 does not apply. See Tatum v. Shinseki, 23 Vet. App. 152 at 155-56 (2009); Camacho, 21 Vet. App. at 365. VA outpatient records do not substantiate the medical requirement of regulation of activities due to his diabetes mellitus. This question needed to be resolved by medical evidence. The Veteran did not provide good cause for his failure to report for his examination. Therefore, VA law requires a denial of the claim. While there was a notation of activity restrictions in June 2018, this was related to an admission for gallstones. The Veteran testified that he can hardly do anything now; however, this description is vague, and the Board notes that there are substantial other disabilities in this case, both service-connected and nonservice-connected. The necessity of medical evidence is to distinguish among the effects of his various disabilities from a medical perspective. Without evidence that would have been obtained at the scheduled VA examination, the evidence does not establish the criteria for a rating higher than 20 percent. Accordingly, the Board concludes that an increased rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. TDIULaw and Regulations 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. 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. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Total disability ratings 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, and that, if there are two or more 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. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Veterans Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Veterans 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 opined 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. VAOPGCPREC 75-91. Entitlement to TDIU. Service connection is in effect for a mental disability rated at 70 percent, dermatitis rated at 30 percent, diabetes mellitus rated at 20 percent, bilateral lower extremity neurological disabilities each rated at 10 percent, and hand injury residuals rated at 0 percent. For the entire period on appeal, the combined disability rating is 90 percent. The Veteran has a work history as a self-employed electrician, from January 1995 to May 2016. He became too disabled to work in May 2016. He attributes ending his employment to difficulty with personal contact with customers. After a review of all of the evidence, the Board finds that the criteria for TDIU are met. The question of TDIU entitlement must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). In this case there are three persuasive facts. First, the Veteran's skills and job experience are highly specialized, leaving few transferrable skills. Second, he has significant service-connected disabilities, both physical and mental, which would be expected to substantially interfere with the performance of the occupation for which he has experience. The physical demands of electrical work would be difficult with respect to his lower extremity neurological disabilities. The Veteran reports that he needs to climb ladders, which is now physically precluded. He reported that he is now limited to doing wiring tasks. Third, the necessity for direct public contact would be difficult due to his mental disability. Accordingly, the Board resolves reasonable doubt in favor of the claim and finds that TDIU is warranted for the entire period on appeal. As this represents the full benefit sought on appeal, there is no prejudice resulting from any deficiency in the duties to notify or assist. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.