Citation Nr: 21024955 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-04 363 DATE: April 27, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) for substitution purposes is remanded. REASONS FOR REMAND The Veteran served in the United States Army from March 1968 to March 1971. The Veteran died in July 2016, and the Appellant is the Veteran’s surviving spouse. In April 2020 the Agency of Original Jurisdiction (AOJ) granted the Appellant’s request to be substituted as the claimant in the Veteran’s pending claims. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) December 2009 rating decision of the Agency of Original Jurisdiction (AOJ). In June 2020 the Board granted an increased 40 percent rating for the Veteran’s service-connected mechanical low back pain and remanded the issues of service connection for hepatitis C and entitlement to a TDIU, for substitution purposes. On remand and in a January 2021 rating decision, the AOJ granted service connection for hepatitis C viral infection for substitution purposes; thus, this matter is no longer on appeal to the Board, and the issue of entitlement to a TDIU for substitution purposes is the only issue remaining on appeal. 1. Entitlement to a TDIU for substitution purposes. Prior to his death, the Veteran asserted that he had to leave his job due to his service-connected back disability and hepatitis, and that he was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. 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). A total disability exists where there is 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. Generally, a TDIU is awarded on a schedular basis, which requires 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 service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran’s combined schedular evaluation for service-connected disabilities was 20 percent from April 27, 2001 and 40 percent from April 19, 2006 (exclusive of a period in which he was assigned a 100 percent rating from June 16, 2014 to December 20, 2015). Thus, the Veteran did not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) during the appellate period. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the claimant’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a Veteran 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 the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rating boards should refer to the Director, 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). 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 Veteran last worked as a lineman until around 2007. See, e.g., June 2007 private medical record; September 2009 correspondence from First Energy detailing time-off dates and/or hours through 2007. Lay evidence from October 2009, which include statements from the Veteran’s neighbors as well as his wife, detail how his service-connected back disability forced him to retire from his post-service job. As noted, however, other than a period of time from June 16, 2014 until December 21, 2015 when a 100 percent rating was in effect, the Veteran did not meet the schedular requirements for a TDIU. Exclusive of the period from June 16, 2014 until December 21, 2015, the Veteran’s highest combined disability rating was 40 percent, for his service-connected back disability, which he had been in receipt of since April 19, 2006. Despite that, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities. However, the Board cannot award TDIU under § 4.16(b) in the first instance, but must submit the matter to the VA Director, Compensation Service. See Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board cannot award TDIU under § 4.16(b) in the first instance because it has no power to do so). The matters are REMANDED for the following action: Refer the case to the Director, Compensation Service, for an extraschedular determination as to whether the Veteran was entitled to a total disability rating based on individual unemployability due to service-connected disability on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16 (b). The rating board should include a full statement as to the Veteran’s service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.