Citation Nr: 21025694 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-28 497 DATE: April 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), is granted subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran’s service-connected hepatitis C precludes him from being able to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 through August 1976. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the VA Regional Office, which granted service connection for hepatitis C and assigned a noncompensable rating effective May 6, 2010. The Veteran timely appealed. In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. In February 2019, the Board granted an initial rating of 40 percent for the Veteran’s service-connected hepatitis C. The Board also found that the issue of a total disability rating based on individual unemployability (TDIU) was deemed to have been raised as part and parcel of the Veteran’s claim for an initial rating increase and remanded the issue of entitlement to a TDIU to the Director of Compensation Service pursuant to 38 C.F.R. § 4.16 (b). In October 2020, it was recommended to the Director to deny TDIU on an extraschedular basis and the Director did so in a December 2020 Advisory Opinion. Thereafter, the RO denied the claim in a February 2021 Supplemental Statement of the Case. Entitlement to a TDIU due to service-connected disabilities. During the February 2019 Board hearing, the Veteran testified that he was unable to work due to the symptoms from his service-connected hepatitis C due to daily fatigue and weakness. A TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a).  VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from securing or following a substantially gainful occupation by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.  The Veteran is currently service-connected for hepatitis, now rated as 40 percent disabling from January 21, 2010. The Veteran’s combined schedular disability rating is 40 percent. Because the Veteran’s combined ratings do not meet the minimum requirements in 38 C.F.R. § 4.16 (a) for consideration of a TDIU on a schedular basis, the issue of entitlement to a TDIU may be considered only under 38 C.F.R. § 4.16 (b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board did so and in October 2020, the VA Director of Compensation Service concluded that an entitlement to a TDIU under 38 C.F.R. § 4.16 (b) was not warranted finding that the evidence does not show the Veteran’s symptoms have resulted in functional impairment preventing him from finding or maintaining gainful employment at any time during the appeal period. The Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU. The Board conducts de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director’s decision is, in essence, the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (“[T]he Director’s decision [pursuant to 38 C.F.R. § 4.16 (b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence”). To grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. When determining whether a TDIU is warranted, 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19 (2018); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the following reasons, the evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, and a TDIU on an extraschedular basis is warranted. The Veteran’s occupational experience is best described as a heating and air conditioning technician. He received a certification in heating and air conditioning (HVAC) in 1980 and continued to work in the HVAC field through 2010, when he states he became unable to work due to his disability. In his November 2018 TDIU application (VA Form 21-8940), the Veteran asserted that he has been unemployable since 2010, due to his service-connected hepatitis C. In February 2019, the Veteran testified that he experiences daily fatigue and malaise, which get progressively worse towards the end of the day. He finds his fatigue often limits him to laying on the couch all day. He testified that between tiredness and pain, he cannot work. A March 2020 VA treatment report indicates that Veteran’s main complaint was persistent fatigue. In a January 2021 VA examination report, the VA examiner indicated the Veteran’s condition caused fatigue, weakness and shortness of breath, and there had been a worsening of his symptoms. He indicated the Veteran had an increasing tumor burden and noted symptoms of fatigue, malaise, shortness of breath, and nausea, attributable to the Veteran’s hepatitis. The Veteran reported being unable to lift objects heavier than 10lbs and can no longer work at heights or climb ladders, due to risk of injury. The VA examiner indicated that the Veteran’s hepatitis C impacted his ability to work, and found that he should avoid lifting heavy objects greater than 10 pounds and avoid working at heights due to risk of injury. Whether a Veteran could perform the physical acts required by employment at a given time is an issue about which a layperson may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The Veteran’s reports of the functional limitations caused his Hepatitis C are plausible and entitled to probative weight. Evidence against the claim includes a March 2015 VA examination report indicating the Veteran did not have signs or symptoms of liver disease and his liver condition did not impact his ability to work. Moreover, the Veteran in September 2020 and January 2021 VA treatment records denied experiencing nausea or fatigue and reported doing well, with his weight and energy levels remaining stable. There is conflicting medical and lay evidence as to the impact of the Veteran’s Hepatitis C on his ability to work. The Veteran’s occupational experience is limited to heating and air conditioning work. The Veteran asserts that he cannot maintain regular employment due to service-connected hepatitis C and there is no indication that the Veteran is qualified to pursue an alternative occupation that might accommodate his limitations due to service-connected hepatitis C. The conflicting evidence raises a reasonable doubt as to whether the Veteran’s service connected Hepatitis C precludes him from securing and following substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.