**UNITED STATES COURT OF VETERANS APPEALS**

No. 91-1645

[Willard Van Hoose, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided March 11, 1993 )

*Michael P. Horan* was on the brief for appellant.

*James A. Endicott*, *Jr*., General Counsel, *David T. Landers*, Acting
Assistant General Counsel, and *R. Randall Campbell*, Deputy Assistant
General Counsel, were on the brief for appellee.

Before KRAMER, HOLDAWAY, and IVERS, *Associate Judges*.

HOLDAWAY, *Associate Judge*: Appellant, Willard Van Hoose, appeals an
August 12, 1991, decision of the Board of Veterans\' Appeals (BVA or
Board), which denied entitlement to a total disability rating based upon
individual unemployability.

**Background**

Appellant had active service from July 1941 to August 1945. In 1946,
appellant received a 10% disability rating for service-connected pes
planus. In 1965, appellant received a 10% disability rating for
service-connected hearing loss. In 1967, appellant was forced to leave
his job as a construction worker due to diabetes. He has been unemployed
since that time. He applied for service connection for diabetes in 1968.
On October 2, 1968, the Department of Veterans Affairs (formerly the
Veterans\' Administration) (VA) Regional Office (RO) denied his claim.

In 1981, appellant submitted a claim to increase the evaluation for his
service-connected disabilities, and to reopen his claim for service
connection for diabetes. On April 13, 1982, the VARO continued
appellant\'s 10% disability rating for pes planus, increased his
evaluation for hearing loss to 40% disabling, and concluded no \"new and
material\" evidence had been submitted to reopen appellant\'s claim for
service connection for diabetes. In 1988, appellant again claimed an
increased evaluation for his service-connected disabilities. In November
1988, the VARO increased appellant\'s disability rating for hearing loss
to 70%. In December 1988, appellant applied for total disability based
on individual unemployability. He explained that he was a construction
worker by trade, and claimed that he could not find employment in the
construction industry with a 70% hearing disability. On January 23,
1989, the VARO denied appellant\'s claim for individual unemployability.
The rating board noted that appellant had considerable hearing loss and
pes planus; however, it concluded that appellant had not shown that
these disabilities precluded substantial employment.

Appellant filed a Notice of Disagreement (NOD) and initiated an appeal
to the BVA. On October 4, 1989, the BVA remanded appellant\'s claim to
the VARO for further factual development. In December 1989, the VARO
considered appellant\'s claim for an increased rating for pes planus and
again considered appellant\'s claim for individual unemployability. The
VARO increased his evaluation for pes planus to 30% disabling, and
denied his claim for individual unemployability. Appellant filed another
NOD and his appeal was forwarded to the Board.

On June 4, 1990, the BVA denied appellant\'s claim for total
unemployability. It concluded that appellant was significantly impaired
from non-service-connected disabilities, but that his service-connected
disabilities did not preclude him from substantial employment. In March
1991, appellant moved for the BVA to reconsider its June 1990 decision.
The Board granted appellant\'s motion and on August 12, 1991, the Board
again denied his claim for individual unemployability.

**Analysis**

Appellant presently has a combined service-connected disability rating
of 80%. In addition to his service-connected disabilities, appellant
also suffers from diabetes, otitis media, tinnitus, and unsteadiness.
His diabetes has resulted in virtual blindness. In determining whether
appellant is entitled to a total disability rating based upon individual
unemployability, neither appellant\'s non-service-connected disabilities
nor his advancing age may be considered. *See* 38 C.F.R.
§ 3.341(a) (1992); *Hersey v. Derwinski*, 2 Vet.App. 91, 94 (1992). The
Board\'s task was to determine whether there are circumstances in this
case apart from the non-service-connected conditions and advancing age
which would *justify* a total disability rating based on
unemployability. In other words, the BVA must determine if there are
circumstances, apart from non-service-connected disabilities, that place
this veteran in a different position than other veterans with an 80%
combined disability rating. *See* 38 C.F.R. § 4.16(a) (1992).

In the present case, the Board reviewed appellant\'s educational
background and employment record, and found nothing that would trigger a
total disability rating based on unemployability. This is plausible, as
there are no circumstances in the record that place this veteran, rated
at 80% disability, in a different category than an other veteran so
rated. *See Gilbert v. Derwinski*, 1 Vet.App. 49, 52-53 (1990). For a
veteran to prevail on a claim based on unemployability, it is necessary
that the record reflect some factor which takes the claimant\'s case
outside the norm of such veteran. *See* 38 C.F.R. §§ 4.1, 4.15 (1992).
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. *See* 38 C.F.R. § 4.16(a) (1992).

In this case, there simply is no evidence, or even an averment of
unusual or exceptional circumstances. The Board\'s denial of a total
disability rating based on individual unemployability is AFFIRMED.