Citation Nr: 1337627 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-19 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter is currently under the jurisdiction of the RO in Honolulu, Hawaii. In December 2011, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. In July 2012 and again in April 2013, the Board remanded this matter for further development. All requested development has been completed and the claim has been returned to the Board for adjudication. This appeal was processed using the Virtual VA paperless claims processing system, including the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for the establishment of TDIU due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Board is granting in full the TDIU benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. TDIU Claim The Veteran contends that his service-connected disabilities make him unable to secure and follow substantially gainful employment. The Veteran is currently service-connected for left knee degenerative arthritis (with a 50 percent disability rating from December 19, 2006), left knee instability associated with left knee degenerative arthritis (with a 20 percent disability rating from April 1, 2008) and a right ring finger disability (with a 10 percent disability rating from October 21, 1997) A Veteran will be entitled to a TDIU upon establishing that he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total disability rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities - provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). However, even if the ratings for a Veteran's disabilities fail to meet the first two objective bases upon which a permanent and total disability rating for compensation purposes may be established, the Veteran's disabilities may be considered under subjective criteria. If the Veteran is unemployable by reason of his disabilities, occupational background, and other related factors, an extraschedular total rating may also be assigned on the basis of a showing of unemployability, alone. See 38 C.F.R. § 4.16(b). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income ." To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the Veteran meets the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(a)(1), for the purposes of meeting the one 60 percent disability requirement, disabilities of one lower extremity can be considered as one disability. The Veteran's service-connected left knee degenerative arthritis (with a 50 percent disability rating) and left knee instability associated with left knee degenerative arthritis (with a 20 percent disability) are both of the same lower extremity. Combined, those two disabilities equal one 60 percent disability rating. However, the evidence must still approximate a finding that the Veteran is unable to pursue a substantially gainful occupation due to the service-connected disabilities. Thus, the issue is whether the evidence is in relative equipoise (i.e., the evidence supporting the claim and the evidence opposing the claim is approximately the same) that the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore, 1 Vet. App. at 359. For a Veteran to prevail on a claim for a TDIU, 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). In July 2010, a VA examiner found that the left knee had a severe effect on employability, due to decreased mobility and a chronic pain condition. Also, the right ring finger disability had a moderate effect on employability due to decreased dexterity of the dominant hand. In November 2011, the Veteran provided testimony at a Board videoconference hearing. At that time, he reported that he had difficulty working due to a psychiatric disorder. The Board notes that a December 2012 rating decision denied service connection for a psychiatric disorder. However, the Veteran also indicated that when he used to work his knee would pop out and cause a lot of pain. He further indicated that he would subsequently not be able to walk until a doctor could readjust his leg, pop his knee back in again and drain the fluids. He reported that the result of such an incident would be that he was unable to work two or three weeks. He additionally reported that he was unable to hold his hand closed and was unable to hold objects effectively. In July 2013, a VA examiner found that the Veteran's left knee condition was the primary reported disability, with chronic pain affecting functional abilities. The left knee limited the ability to stand; there was no documentation of pain at rest. The examiner determined that the Veteran was not able to perform activities that required him to stand, walk or bend for extended periods of time. Also, the right finger disability limited the Veteran's activities that required him to grasp or hold for extended periods of time. The July 2013 VA examiner further found that because of the service-connected left knee osteoarthritis the Veteran would not be able to secure and follow substantially gainful employment due to chronic pain and difficulty walking or standing for sustained periods of time. The examiner thus opined that the Veteran's individual unemployability was at least as likely as not proximately due to or the result of the Veteran's service-connected left knee osteoarthritis. Based on a review of the relevant evidence discussed above and giving the benefit of the doubt to the Veteran, the Board finds that the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. There can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit-of-the-doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. As such, the Board finds that entitlement to TDIU is warranted. ORDER Entitlement to a TDIU is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs