Citation Nr: 22014437 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-13 145 DATE: March 12, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army on active duty from March 1988 to March 1992, February 1998 to April 2000, and May 2003 to December 2003. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2014 rating decision by the Veterans Benefits Administration (VBA). The Board remanded this matter in June 2021 with instructions for VBA to assist the Veteran in developing his TDIU claim and to consider referring the matter to the Director of Compensation Service under 38 C.F.R. § 4.16(b). While VBA conducted some development relevant to the TDIU claim, it declined to refer the matter to the Director. See January 2022 supplemental statement of the case. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. 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). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence. If the Board finds "sufficient evidence" to substantiate a "reasonable possibility" that a veteran may be unemployable because of service-connected disabilities, then the proper course of action is to remand the claim for referral to the Director for an advisory opinion for extraschedular consideration. See 38 C.F.R. § 4.16(b). In contrast, if the Board determines that a referral is not appropriate, a different analysis must be made. In particular, the Court in Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021), held that if the Board denies a referral, it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is service connected for a right knee disability (rated at 30 percent), a left knee disability (rated at 20 percent), and a left hand disability (rated as noncompensable). The Veteran's combined disability rating is 50 percent. Therefore, as the Veteran does not meet the schedular criteria for a TDIU award, the Board must consider whether referral to the Director under 38 C.F.R. § 4.16(b) is warranted. The record contains evidence that the Veteran experiences many limitations as a result of his service-connected disabilities. A November 2019 VA knees examiner opined that the Veteran's knee conditions impact the Veteran's ability to stand for long, walk more than 1/4 to 1/2 mile, walk on stairs, kneel and squat. The examiner noted the Veteran regularly uses a cane. The Veteran has indicated that he experiences falls and that his left hand disability impairs his ability to write and type. See generally disability benefits paperwork from the Social Security Administration. The Social Security Administration granted the Veteran disability benefits in part because of the Veteran's limitations due to these service-connected disabilities. The Board finds the record contains sufficient evidence to substantiate a reasonable possibility that the Veteran may be unemployable because of service-connected disabilities. Therefore, the proper course of action is to remand the claim for referral to the Director for an advisory opinion for extraschedular consideration. See 38 C.F.R. § 4.16(b). The Board REMANDS this matter for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the Veteran's claims file, VBA should refer this matter to the Director of Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.