Citation Nr: 21013918 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-07 069 DATE: March 10, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to December 1970. This case comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. This claim was previously before the Board in September 2018, at which time it was remanded for further development. Entitlement to a TDIU The Veteran has essentially contended that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In reaching such a determination, 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). In the process of determining whether unemployability exists for TDIU, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes her case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s service-connected disabilities include: (i) PTSD (50 percent); (ii) coronary artery disease (10 percent); (iii) tinnitus (10 percent); and (iv) hearing loss (zero percent). Based upon the above, the Veteran’s combined disability rating does not meet the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). There is, however, plausible evidence of record that suggests the Veteran may be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. The evidence indicates that the Veteran worked as a utility manager for a university but retired in December 2007 due to his service-connected PTSD. He stated that he became unable to make the necessary decisions required to perform his job duties and, if not for his PTSD, he could still work as the utility manager. While these findings do not preclude the possibility of any employment, they do show that the Veteran’s service-connected disabilities significantly impair his employability. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). In light of this evidence, the Board finds the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16(b) should be referred to the Director of Compensation and Pension Service for adjudication. For these reasons, the Board finds that a remand for this referral is warranted. While in remand status, the Veteran should be given an additional opportunity to explain the difference between the information he provided in his February 2016 Form 9, in which he noted that he had been continuing to work part-time with his previous employer at the rate of as much as 520 hours per year with earnings of $15,000 to $16,000, annually (which was reportedly coming to an end in July 2016), and his most recent VA Form 21-8940, in which he indicated that his most recent employment came to an end in 2007. The matters are REMANDED for the following action: 1. Contact the Veteran and give him one more opportunity to explain the difference between the information he provided in his February 2016 VA Form 9, in which he noted that he had been continuing to work part-time with his previous employer at the rate of as much as 520 hours per year with earnings of $15,000 to $16,000, annually (which was reportedly coming to an end in July 2016), and his most recent VA Form 21-8940, in which he indicated that his most recent employment came to an end in 2007. 2. Refer the case to the Director of Compensation for an opinion with respect to whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16(b). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.