Citation Nr: 18150667 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-15 309 DATE: November 15, 2018 ORDER Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to March 2, 2011 and from June 11, 2013, excluding a periods of a total disability rating, is granted. Entitlement to a TDIU from March 2, 2011 to June 10, 2013 is denied. FINDINGS OF FACT 1. Prior to March 2, 2011 and from June 11, 2013, the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. 2. From March 2, 2011 to June 10, 2013, the Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to March 2, 2011 and from June 11, 2013, the criteria for a TDIU are met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.340, 4.3, 4.16. 2. From March 2, 2011 to June 10, 2013, the criteria for a TDIU are not met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to March 1977. This case is before the Board of Veterans’ Appeals (Board) from a decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, a videoconference hearing was held before the undersigned. A transcript of this hearing is associated with the Veteran’s claims file In February 2018, the Board remanded the current claim for additional development. The Board notes that the issue of entitlement to service connection for a right hip disorder was originally on appeal. However, in an August 2018 rating decision, the RO granted service connection for a right hip disorder. The Veteran has not expressed disagreement with the effective date or evaluation assigned. Thus, as that decision represents a full grant of the benefit sought with respect to that issue, such matter is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). As the Veteran has been granted a total evaluation for right hip surgery and special monthly compensable from May 23, 2018 to June 30, 2019, entitlement to TDIU is moot during this period. See Bradley v. Peake, 22 Vet. App. 280 (2008). As indicated above, this period is excluded from TDIU consideration. Entitlement to a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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. Id. The Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The record indicates that the Veteran graduated from high school prior to entering the military. See October 2013 VA Examination report. After the military he attended college for two years to study electronics, but did not receive a degree. Id. He then worked for thirteen years at a Naval Base in Norfolk, Virginia. Id. He last worked as a manager before he had a quadruple bypass and went on disability. The Veteran testified that he last worked in 2005. See September 2016 Hearing Transcript. The Veteran is service connected for a right knee disorder (60 percent, from April 1, 2010), major depressive disorder (40 percent, from June 11, 2013), left knee disorder (30 percent, from January 1, 2006), right hip degenerative joint disease (10 percent, from June 11, 2013 to May 22, 2018), right hip replacement (100 percent, from May 23, 2018 and 30 percent, from July 1, 2018), and right hip scar (0 percent, from June 11, 2013 to May 22, 2018). The foregoing shows that, for all periods on appeal, the Veteran had at least one disability rated at 40 percent or more, with a combined rating of 70 percent or more. Therefore, the Veteran has met the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16(a). Thus, the pertinent question is whether these disabilities precluded substantially gainful employment. After a thorough review of the record, the Board finds that prior to March 2, 2011, the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded substantial gainful activity. In pertinent part, during this period, VA treatment providers prescribed continued convalescence as a result of the Veteran’s previous right knee surgery (February 2009 right total knee replacement). See September 2010 and January 2011 VA treatment records. Consequently, such evidence indicates that, prior to March 2, 2011, the Veteran was unable to work as a result of his service-connected disorders. From March 2, 2011 to June 10, 2013, however, the record shows that the Veteran’s was able to walk and there was no indication that his service-connected right knee disability required continued convalescence. See November 2011 Duke University Medical Center and March 2012 VA treatment records. Moreover, although his physical activities were limited, the evidence did not otherwise show that his service-connected disabilities would preclude employment, consistent with having some college education. Accordingly, for the periods from March 2, 2011 to June 10, 2013, while the probative evidence indicates that the Veteran’s ability to work would be impacted by his service-connected disabilities, it does not otherwise show that he was unable to work due to those limitations. From June 11, 2013, however, the Board finds that the collective impairment of the Veteran’s service-connected disabilities sufficiently precludes work such that the Veteran is rendered unable to obtain and maintain any form of gainful employment. In this regard, the Veteran’s January 2015 VA knee examination indicates that the Veteran was unable to walk over twenty-five yards without rest, unable to pick anything up from the floor, and utilized a cane for ambulation. VA treatment records also show that the Veteran had an antalgic gait and had problems with ambulation. Such limitations indicate that the Veteran would be severely limited in his ability to perform physical work. Additionally, the October 2013 and May 2014 VA psychological examinations document that the Veteran was even more limited. That is, the Veteran’s psychiatric symptomatology consisted of depressed mood, anxiety, panic attacks, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideations. Such symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood and would further limit the Veteran’s ability to perform sedentary work. See October 2013 and May 2014 VA Examination report. In light of the Veteran’s limitations, the Board finds that, prior to March 2, 2011 and from June 11, 2013, the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Chiefly, prior to March 2, 2011, the Veteran was prescribed convalescence by his treating physician due to the significant physical problems associated with his service-connected right knee and would be unable to work. Moreover, from June 11, 2013, he has had significant occupational limitations due to both physical and psychiatric disabilities that would severely impact his ability to perform both physical and sedentary labor. Accordingly, the Board finds that entitlement to a TDIU is warranted for the periods prior to March 2, 2011 and from June 11, 2013. For the period March 2, 2011 to June 10, 2013, TDIU is denied. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel