Citation Nr: 18156059 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-38 750A DATE: December 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence of record demonstrates that the Veteran is unable to secure or follow substantially gainful employment due to the combined effect of his service-connected disabilities. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from January 1972 to January 1976, November 1990 to May 1991, and from July 2006 to October 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a personal hearing before a Decision Review Officer in November 2016 and at a videoconference hearing before the undersigned Veterans Law Judge in November 2018. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, 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 law provides that a total disability rating may be assigned where the schedular rating is less than total when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 70 percent disabling; degenerative joint disease (DJD) and internal derangement of the left knee post total knee arthroplasty and right knee DJD status post total joint arthroplasty and revision surgery, each rated as 30 percent disabling; right knee instability, ulcerative colitis, tinnitus, hypertension, and right hip DJD, each rated as 10 percent disabling; and bilateral hearing loss, left knee scar, right hip DJD (limitation of extension), right hip DJD (impairment of thigh), and right knee scar, each rated as noncompensable (zero percent). His combined rating has been 70 percent or higher since January 16, 2010, and the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met. The Veteran seeks entitlement to a TDIU. On the VA Form 21-8940 received in January 2013, the Veteran indicated that he had worked as a self-employed HVAC contractor from June 1980 until July 2006, followed by working in construction with the Navy Seabees from July 2006 until September 2007. He indicated that August 2007 was when his disability affected full-time employment and when he last worked full-time. The Veteran reported that he left his last job/self employment because of his disability and that he had not tried to obtain employment since becoming too disabled to work. The Veteran listed two years of college education and indicated that he had not had any other education or training before or since becoming too disabled to work. In his November 2014 VA Form 9, the Veteran reported that he was unable to find work in his field of expertise (residential and commercial services (heating and air conditioning technician)), and that he is unable to climb, stoop, kneels, lift, squat or sit for prolonged periods of time, and that sitting for too long exacerbates pain in his right hip and knees. The Veteran testified in November 2016 that he last worked in approximately July 2007 as a self-employed heat and air conditioning contractor in his own company, and that he shut the company down and stopped working because of both knees and PTSD. He indicated that he had had a total of three knee replacements, two on his right knee and one on his left, and that sitting for long periods of time made his knees hurt. The Veteran also testified that he did not like to be in enclosed or confined spaces because of his PTSD. During the Veteran’s November 2018 hearing, it was noted that he initially received Social Security Administration benefits in 2007 due to disability and subsequently switched based on age. The Board finds that the medical and lay evidence of record supports the claim for entitlement to a TDIU based on the combined effects of the Veteran’s service-connected disabilities. This determination is based on the fact that the Veteran was self-employed for approximately 26 years as an HVAC contractor and that his only employment since then was reportedly one year of work as a Seabee, which coincides with his last period of active duty. Upon consideration of the Veteran’s work and educational history, and the functional impacts of his service-connected physical and mental disabilities, the Board resolves all reasonable doubt in the Veteran’s favor and finds that a TDIU is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel