Individual Unemployability – Consideration of Educational and Occupational History
When evaluating a veteran’s employability, consideration may be given to his/her level of education, special training, and previous work experience, but not to age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.19
Once a Veteran is found to have 60% service-connected disability (or 40%/70%) in step one of the analysis, the VA analyzes the veteran’s educational and occupational history to determine whether his service-connected disabilities preclude him from securing or following substantially gainful employment (activity) (SGA).
In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), the Court held that to determine whether service-connected disability precludes SGA, a general medical examination is to be scheduled in which the examiner is requested to provide an opinion as to whether or not it is at least as likely as not that the veteran’s service-connected disability or combined disabilities render him or her unable to secure and maintain SGA, to include describing the disabilities’ functional impairment and how that impairment impacts on physical and sedentary employment. See also VA Training Letter 10-07 (Sept. 14, 2010).
The Court has stated:
“[w]here the veteran submits a claim for a TDIU rating … the BVA may not reject that claim without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”
The simple fact that a veteran may be young, or may be highly educated, or may have been recently employed, or may have had a long work career are not decisive, and standing alone are insufficient justifications to deny a TDIU claim; Gleicher v. Derwinski, 2 Vet. App. 26 (1992).