Citation Nr: 21012666 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-16 001A DATE: March 4, 2021 ORDER Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities have precluded substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from July 1963 to June 1965. The matter was before the Board of Veterans’ Appeals (Board) in August 2017, at which time the issue was remanded for further development. The matter was once again remanded in April 2019 and September 2020 for further development. The requested development has been completed and the matter is now 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 (2019). 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). Service connection is currently in effect for bronchial asthma, rated as 60 percent disabling and for an unspecified anxiety disorder, rated as 50 percent disabling. The combined disability evaluation is 70 percent. Based upon the above assigned disability evaluations, the Veteran has met the criteria for consideration under 38 C.F.R. § 4.16(a) throughout the appeal period. In conjunction with the September 2020 remand, the Veteran was afforded several VA examinations. At the time of a November 2020 VA respiratory examination, the examiner indicated that based solely on his service-connected asthma, the Veteran had the following restrictions: only sedentary duties and away from asthma triggers such as dust, fumes, smoke, or other strong odors at the workplace. At the time of a December 2020 VA psychiatric examination, the examiner indicated that based on a review of the file and medical records, and, after taking a psychiatric history and performing a mental status exam, it was determined that the Veteran's service-connected anxiety condition, although chronic, had been mostly stable. There was no medical evidence of acute exacerbation of neuropsychiatric symptomatology nor emotional crisis intervention, nor inpatient psychiatric treatment, or significant changes in modality of treatment. However, the Veteran's mood instability could mildly limit his capacity to interact effectively and on a sustained basis with other individuals. Social function at work environment that involved interaction with the public, responding appropriately to persons in authority or cooperative behaviors involving coworkers could also be limited. On his TDIU application, the Veteran listed his occupation as a food salesman and cook. He noted having a 12th grade education. (Continued on the next page)   Based upon the above findings, it is evident that the Veteran cannot work in the field in which he has training and experience as a salesperson/cook. The Veteran cannot perform manual labor requiring standing nor can he be around areas of fumes or smoke. He must also interact with others in this position. Standing and being around smoke and fumes as well as other co-workers is a requirement in the Veteran’s past profession. He has a lack of training and education in other fields of work, and his service-connected disabilities prevent him from obtaining and securing substantially gainful employment. The Board finds that the weight of the evidence, including the examiners' findings, along with the Veteran's statements and work history, demonstrate that he has met the criteria set forth in § 4.16, and that a TDIU based upon service-connected disabilities is warranted. 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.