Citation Nr: 18145653 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-24 425 DATE: October 29, 2018 ORDER Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is granted. FINDING OF FACT The preponderance of the evidence reflects that the Veteran’s service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active service from October 1999 to May 2005. In October 2018, he testified before the undersigned Veterans Law Judge; a transcript of the hearing will be associated with the claims file. 1. Entitlement to a TDIU The Veteran contends that he has been unable to secure substantially gainful employment due to his service-connected disabilities. The evidence shows he last work as an EMT driver in February 2014. The Board notes that the Veteran has several periods of temporary 100 percent ratings for several disabilities, which do not impact the Veteran’s claim for a TDIU. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341. The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system, such as the orthopedics, will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities are: left knee limitation of motion, rated 40 percent; right knee medial meniscus and anterior cruciate repair, rated 20 percent; lumbar degenerative disc disease, rated 20 percent; radiculopathy of sciatic nerve of the left lower extremity, rated 20 percent; right knee instability, rated 10 percent; left knee medial meniscus and anterior cruciate repair, rated 10 percent; right knee limitation of motion, rated 10 percent; radiculopathy of the sciatic nerve of the right lower extremity, rated 20 percent; radiculopathy of the femoral nerve of the right lower extremity, rated 10 percent; and scar of the right index finger, rated noncompensable. The Veteran has a combined rating of 90 percent from November 19, 2012. Thus, the Veteran meets the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a) from November 19, 2012, when he had a 40 percent disability rating for his left knee limitation of motion and a combined rating of 90 percent. Even so, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran’s service-connected disabilities combine to preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The evidence of record reveals that the Veteran has a high school diploma and an Associate Degree in criminal justice. He was employed as a security guard from November 2010 to April 2011; a truck driver from May 2011 to Dec 2011, and from July 2012 to December 2012; and an EMT driver from June 2013 to February 2014. An April 2015 vocational assessment from C.V., a rehabilitation specialist, documents review of the Veteran’s claims file and an interview with the Veteran. The Veteran stated that he could drive and do light chores as long as he could pace himself and use his cane. He described his back condition as constant pain rated between four and 10 out of 10. He had three back surgeries in 2014, which included fusion of the spine, his back pain radiated down both legs, and he used a wheelchair and a cane to ambulate. C.V. noted that his back condition restricted the Veteran’s ability to lift, stand, walk, carry, and climb. In addition, the back and knee pain interfered with his sleep, and he averaged three to four hours of sleep per night. Due to the lack of sleep, he was fatigued, tired, moody, and napped during the day. He also changed positions every 20 to 30 minutes, from standing, to sitting, to lying down. The Veteran reported that he had very limited ability to walk, and used a cane in his house and a wheelchair outside. Further, his knees caused constant pain, and they were unstable and resulted in falls twice a week. He stated that he used knee braces, and had edema in both knees and had to elevate his legs to heart level when he sat down. C.V. noted that the Veteran graduated high school and completed an Associate Degree in criminal justice. He also received training and was certified as an EMT. The Veteran was an EMT driver for 5 months, a truck driver for a total of two months with two companies, and a security guard for two weeks. He was never a supervisor, and he had basic computer and clerical skills. C.V. found that the Veteran did not have transferable skills to sedentary employment, and opined that he was not able to perform any type of substantial, gainful occupation. From a non-exertional standpoint, C.V. found that the Veteran could perform a substantial, gainful occupation. However, he noted that the Veteran had to elevate his legs to chest level when he sat to reduce swelling in his lower extremities, which would prevent him from performing any type of desk job as this would require workplace accomodation. He also had to use a cane and a wheelchair to ambulate, which would preclude light, medium, and heavy employment. The evidence also revealed pain with extension and flexion, decreased range of motion, and moderate spasms in the back; and his neurologist stated that the Veteran continued to have back pain and right sciatica, which was intractable. C.V. also noted that the Veteran had significant pain component due to three back surgeries of questionable benefit; and knee and back pain that could result in vocational problems with concentration, focus, paying attention, attendance, and staying on task. In addition, the Veteran had to change position, including laying down, which would not be accommodated in the workplace. Therefore, C.V. opined that the Veteran’s physical condition restricted his vocational functioning to less than a sedentary level. Thus, the combination of the vocational limitations associated with his service-connected conditions, as well as his pain, would preclude any and all employment. The Board notes that VA examination reports in February 2017 found that the Veteran’s back and knee disabilities would not preclude sedentary employment. However, the VA examiners only addressed the individual disabilities of the back and knees, and did not discuss whether the Veteran’s combined service-connected disabilities would preclude the Veteran from obtaining gainful and substantial employment based on his education and training. Therefore, the VA examiners’ opinions are inadequate and of no probative weight. The above evidence shows that the Veteran’s service-connected disabilities have precluded him from obtaining and retaining substantially gainful employment. Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Entitlement to a TDIU is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel