Citation Nr: 21073571 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 14-20 137A DATE: December 9, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1984 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a member of the Board in May 2018; a transcript has been associated with the claims file. In August 2018, the Board remanded the claim for a TDIU and also found that the Veteran had timely disagreed with May 2011 and May 2012 rating decisions that denied an increased rating for the lumbar spine and for reversal or revision of an August 5, 1988 rating decision that granted service connection for the lumbar spine and assigned a 10 percent rating on the basis of clear and unmistakable error (CUE). The Board also directed the RO to provide the Veteran with the criteria for a CUE claim and a statement of the case. The RO provided the criteria in correspondence in April 2020 and issued a statement of the case addressing these issues in July 2021. The Veteran did not perfect a timely appeal and these issues are no longer before the Board on appeal. TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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." See Hatlestad v. Brown, 5 Vet. App. 524, 529. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317. The objective criteria set forth at 38 C.F.R. § 3.340 (a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purpose of meeting the criteria for a single disability, the following will be considered one disability: disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor; disabilities arising from a single etiology or accident, or disabilities involving a single body system such as orthopedic. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). Such is not the case here. 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 shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The 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 rating board did not refer this case for extra-schedular consideration. The issue then is whether a Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356. For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor, which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. 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. See Van Hoose v. Brown, 4 Vet. App. 361. In determining whether unemployability exists, consideration may be given to the claimant's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). 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. Id. Marginal employment may also be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. TDIU The Veteran raised the issue of TDIU in September 2010. See September 2010 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. During the appellate period, the Veteran had nine service- connected disabilities: residuals injury left ankle, rated 20 percent from June 20, 2005; chronic lumbar disability, rated 20 percent from June 10, 2010; left sciatic nerve associated with chronic lumbar disability, rated 20 percent from June 10, 2010; residuals injury left wrist, rated 10 percent from April 03, 1997; bilateral hearing loss, rated 10 percent from March 06, 2009; tinnitus, rated 10 percent from March 06, 2009; residuals injury to right middle finger, with a noncompensable rating and residuals injury right little finger, with a noncompensable. The Veteran's combined rating was 60 percent as of June 2010. Considering the orthopedic disabilities of the spine (20), wrist (10), ankle (20), and fingers (0), the combined rating is 42 percent (rounded to 40) but does not reach 60 percent to meet either criterion. Therefore, according to the criteria set out in 38 C.F.R. § § 3.340, 3.341, 4.16(a), the Veteran has not met the schedular requirements of having at least one disability rated at 60 percent or more, or at least one disability rated at 40 percent with additional disability sufficient to bring the combined evaluation to 70 percent. As the Veteran did not meet the schedular requirements for a TDIU, the only remaining question is whether the Veteran was unable to secure or follow substantially gainful occupation because of his service-connected disabilities for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16 (b). The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. However, even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). As noted, for the Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose, supra. In an October 2010 SSA record, the Veteran reported ceasing work as a truck driver in March 2008 and indicated since he had been disabled and was unable to mow his grass or stand in one place very long. He also stated that he could not wash his car or play his guitar. In addition, the Veteran stated that he could not drive due to the shooting pains in his back. However, SSA cited back and knee disabilities in the cover document. See July 2010 Medical Treatment Records-Furnished by SSA, p.128. In a January 2011 VA treatment record, a clinician indicated that the Veteran worked as a long-distance truck driver his whole life and was unable to obtain and maintain gainful employment in the physical sector and as a truck driver due to a combination of the lumbar, wrist and ankle conditions. The clinician noted that the Veteran had limited education, had trouble sitting for prolonged periods of time with other physical limitations and it was unlikely the Veteran would be able to obtain or maintain desk work due to limited education and chronic pain. A letter from the Veteran's wife stated the Veteran had not worked since 2007. See April 2012 Medical Treatment Record-Government Facility, p.1;4. In a May 2011 VA treatment record, a clinician indicated that the Veteran had been a long-haul truck driver but was not currently employed. The Veteran had retired in 2008 due to his back, ankle, and wrist conditions. See Medical Treatment Record-Government Facility, p.2. During the May 2018 Board hearing, the Veteran described his mobility and lifting limitations and his difficulty sitting or standing for extended time. He reported that he dropped out of high school and did not have computer skills. He was advised by his physician that he could not serve on a jury because of prolonged sitting. In this case, there is evidence that shows the Veteran may have been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities during the appeal. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. The Veteran contends he has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran reports that since 2008 forward, he has been unable to work as a truck driver due to the need for him to stand, sit and walk. The Veteran reports he was no longer able to work as a truck driver due to increased pain and difficulty with increased symptomology, and that he experienced pain in his back, wrist, and ankle. Without deciding the issue of inability to secure or follow all forms of substantially gainful employment, the Board finds that there is sufficient evidence to warrant referral for consideration on an extraschedular basis. As the Board does not have the authority to assign an extraschedular TDIU in the first instance, referral to the Director of Compensation Service for consideration of entitlement to a TDIU is warranted. The matter is REMANDED for the following action: The AOJ should take appropriate action to refer the case to the Director, Compensation Service for extraschedular consideration as to entitlement to TDIU benefits. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, Associate 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.