Citation Nr: 1802737 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-38 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Carol Ponton, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2013, the Veteran testified before the undersigned Veterans Law Judge regarding his left shoulder disability and TDIU. A copy of the transcript has been associated with the claims file. In March 2015 and April 2016, the Board remanded the issues of entitlement to a TDIU and to service connection for a left shoulder disability. In November 2017, the RO granted service connection for the left shoulder disability; thus, that claim has been satisfied and is no longer before the Board. Subsequent to the grant of service connection for the left shoulder disability, the Veteran requested another hearing before the Board to address his TDIU claim. In a December 2017 pre-conference hearing, the Veteran's representative agreed to withdraw the request for a hearing if the undersigned found a basis to grant TDIU based on a review of the record, which has been found. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service connected disabilities likely render him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminarily, there is no basis for the Board to further address the Veterans Claims Assistance Act of 2000 (VCAA), as the grant of TDIU is fully favorable and will result in no prejudice to the Veteran. TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The provisions of 38 C.F.R. § 4.16(a) set out minimum percentage requirements for service-connected disabilities that serve as the basis for the grant of TDIU. Essentially, if a veteran is only service-connected for one disability, that disability must have a rating of 60 percent or more; if the Veteran has two or more service-connected disabilities, at least one of those disabilities must have a rating of 40 percent or more, and the total combined rating of service-connected disabilities must be at least 70 percent. Disabilities affecting a single body system, or of a common etiology, shall be considered as a single disability under this section. The Veteran filed his claim for a TDIU in December 2008. At that time he had service connection for bilateral knee disabilities, a left hip disability, and hypertension. As of June 26, 2009, he also had service connection for a left shoulder disability. The combined disability rating was 80 percent from December 31, 2008 to July 31, 2012, and has been 70 percent since August 1, 2012. Thus, the Veteran has met the minimum percentage requirements for consideration of a schedular TDIU for the entire pendency of the claim. The question remains as to whether the Veteran's service-connected disabilities, with consideration of his education and occupational experience, render him unable to obtain and maintain substantially gainful employment. The evidence shows that the Veteran stopped working in 1997 due to his service-connected knee disabilities. Social Security disability benefits were granted at that time based on the left knee disability and hypertension. During his August 2013 hearing before the Board, the Veteran testified that during service he was a hospital corpsman with specialty training as an ophthalmic technician. He continued working as an ophthalmic technician after service. His duties required standing, sitting, moving around, walking to get patients, taking patients to rooms, and performing examinations. He testified that he can no longer perform these duties. He indicated that he cannot sit down and sit still, or move around. The Board finds highly probative the opinion from Dr. D.B.M., dated December 2015. In this opinion report, Dr. D.B.M. summarized the Veteran's medical history and provided an opinion indicating that the Veteran has been totally precluded from employment due to his bilateral knee disabilities since mid-1997. Dr. D.B.M. stated that the Veteran had specialized training during service and performed the same job for his entire career. His job duties required him to be up and about, going from a sitting to standing position, and at times, sitting with his knees acutely flexed. Dr. D.B.M. stated that individuals with patellofemoral problems have an extremely difficult time performing these types of activities, especially on a consistent basis throughout an 8 hour workday. He further stated that the Veteran was never trained in any other type of work and that his skills are highly individualized for the sole profession of working with an ophthalmologist. He indicated that the Veteran's skills would not provide crossover skills to any other type of employment. Notably, VA examination reports addressing the knees and left hip indicate that the Veteran's service-connected joint disabilities have caused moderate to severe impact on functioning, and in some cases, prevent certain activities. See VA examinations of March 2009, April 2011 and March 2012. In April 2011, a VA examiner stated that the Veteran's bilateral knee and left hip disabilities caused significant effects on employment due to decreased mobility and pain. The conditions affected the Veteran's ability to stand and work with patients. The need to sit and stand caused pain in all three areas. In June 2011, an examiner opined that the Veteran could not work in a physically demanding job but could work in a sedentary position. See also VA examination, March 2012. In this case, the VA examiners and Dr. D.B.M. agree that the Veteran is not capable of engaging in physically demanding employment. While the VA examiners found the Veteran capable of engaging in sedentary employment, the examiners did not consider the Veteran's education or occupational experience. Further, since service connection was not granted for the left shoulder until November 2017 (effective June 26, 2009), the opinions did not consider the functional impact of the left shoulder disability. The medical evidence shows that the left shoulder disability causes problems with reaching and lifting, and causes mild to moderate impact on activities of daily living. The Board has considered all of the evidence and finds it highly unlikely that the Veteran could obtain and maintain substantially gainful employment. The evidence clearly shows the Veteran cannot engage in a physically demanding job. As noted by Dr. D.B.M., the Veteran's occupational skills are highly specialized and do not translate to sedentary positions. Dr. D.B.M. explained why the Veteran has been unemployable since mid-1997 due to his knees, and, since that time, his left hip pain and left shoulder have contributed to his inability to engage in sedentary employment. Consequently, based on the severity of the service-connected bilateral knee, left hip, and left shoulder disabilities, and in light of the Veteran's occupational experience, the Board finds it unlikely that the Veteran could obtain and maintain substantially gainful employment. The appeal is granted. ORDER TDIU is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs