Citation Nr: 18161316 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 08-03 590 DATE: December 31, 2018 ORDER Entitlement to service connection for a left heel condition is dismissed. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, is dismissed. Entitlement to an evaluation in excess of 10 percent for hypertension is dismissed. Entitlement to an evaluation in excess of 10 percent for left great toe hallux valgus and hallux rigidus with arthritis and painful limited motion (previously rated as left great toe traumatic arthritis) is dismissed. Entitlement to an evaluation in excess of 10 percent for a right knee patellectomy, prior to June 22, 2011, and in excess of 10 percent for limited extension status post patellectomy of the right knee, from January 21, 2015, is dismissed. Entitlement to a compensable evaluation for left knee strain, prior to June 22, 2011, is dismissed. Entitlement to an evaluation in excess of 20 percent for traumatic arthritis of left knee, prior to June 22, 2011, is dismissed. A total disability rating based on individual unemployability (TDIU) is granted from May 28, 2009, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. In letters addressed to the Board dated July 8, 2018 and October 23, 2018, and received by the Board prior to the promulgation of a decision in the appeal, the Veteran stated his belief that the issue of TDIU prior to June 22, 2011, was the only unadjudicated issue remained on appeal. The Board construes the Veteran’s written statements as his expressed desire to withdraw the appeals with respect to all other remaining issues. 2. The Veteran has effectively withdrawn his appeal of the issues of entitlement to: (1) service connection for a left heel condition; (2) an evaluation in excess of 20 percent for diabetes mellitus, type II; (3) an evaluation in excess of 10 percent for hypertension; (4) an evaluation in excess of 10 percent for left great toe hallux valgus and hallux rigidus with arthritis and painful limited motion (previously rated as left great toe traumatic arthritis); (5) an evaluation in excess of 10 percent for a right knee patellectomy, prior to June 22, 2011, and in excess of 10 percent for limited extension status post patellectomy of the right knee, from January 21, 2015; (6) a compensable evaluation for left knee strain, prior to June 22, 2011; and (7) an evaluation in excess of 20 percent for traumatic arthritis of left knee, prior to June 22, 2011. Thus, there are no allegations of error in fact or law concerning these matters that remain for appellate consideration. 3. As of May 28, 2009, the Veteran met the schedular criteria for a TDIU, and his service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a left heel condition have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204 (2018). 2. The criteria for withdrawal of the issue of entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204 (2018). 3. The criteria for withdrawal of the issue of entitlement to an evaluation in excess of 10 percent for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204 (2018). 4. [Grant] The criteria for withdrawal of the issue of entitlement to an evaluation in excess of 10 percent for left great toe hallux valgus and hallux rigidus with arthritis and painful limited motion have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204 (2018). 5. The criteria for withdrawal of the issue of entitlement to an evaluation in excess of 10 percent for a right knee patellectomy, prior to June 22, 2011, and in excess of 10 percent for limited extension status post patellectomy of the right knee, from January 21, 2015, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204 (2018). 6. The criteria for withdrawal of the issue of entitlement to a compensable evaluation for left knee strain, prior to June 22, 2011, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204 (2018). 7. The criteria for withdrawal of the issue of entitlement to an evaluation in excess of 20 percent for traumatic arthritis of left knee, prior to June 22, 2011, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204 (2018). 8. As of May 28, 2009, the criteria for the assignment of TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in July 2007. The Veteran perfected an appeal. See August 2007 Notice of Disagreement (NOD); January 2008 Statement of the Case (SOC); January 2008 VA Form-9. The Board remanded the claim for further evidentiary development in June 2012. Withdrawal of Issues An appeal may be withdrawn by an appellant or by his or her representative. 38 C.F.R. § 20.204 (a). Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204 (b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). In a July 8, 2018 letter addressed to the Board, the Veteran stated, in part, “that the remand has been effectively delivered, except for an earlier start date of my 100% combined and permanent unemployability retroactively date [sic] to January 2009.” The Veteran further stated that he sought “a retroactive payment of unemployability claim back to January 2009” and stated, “that is the only open remaining decision needed on my case.” See July 2018 Correspondence. Further, in an October 23, 2018 letter addressed to the Board, the Veteran stated that “missing, however, is the correct TDIU retroactive date of January 2009.” The Veteran again stated that he sought a finding for “a retroactive payment of my unemployability claim back to January 2009. That is the only open decision needed on my case.” See October 2018 Correspondence. Review of the record shows that from June 22, 2011, the Veteran has been rated with a combined 100 percent rating, exclusive of periods for which special monthly compensation (SMC) was in effect under 38 U.S.C. §1114, subsections (s) and (k), respectively. Thus, the Board agrees with the Veteran’s assessment of his appeal and finds that the only issue that remains on appeal is entitlement to TDIU prior to June 22, 2011. The Veteran does not contend otherwise. See July 2018 Correspondence; October 2018 Correspondence. Accordingly, the Board will focus its attention on the issue of entitlement to TDIU prior to June 22, 2011. In so finding, the Board construes the Veteran’s July 2018 and October 2018 statements as indicating his satisfaction with the decisions rendered with regard to all other appealed issues, enumerated above. The Board further finds that the July 2018 and October 2018 written and signed statements by the Veteran constitute a withdrawal of all remaining issues on appeal, with the exception of entitlement to a TDIU, prior to June 22, 2011. As the Veteran has withdrawn the aforementioned issues on appeal, there remain no allegations of errors of fact or law for appellate consideration. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board does not have jurisdiction to review the appeal of the issues of entitlement to: (1) service connection for a left heel condition; (2) an evaluation in excess of 20 percent for diabetes mellitus, type II; (3) an evaluation in excess of 10 percent for hypertension; (4) an evaluation in excess of 10 percent for left great toe hallux valgus and hallux rigidus with arthritis and painful limited motion (previously rated as left great toe traumatic arthritis); (5) an evaluation in excess of 10 percent for a right knee patellectomy, prior to June 22, 2011, and in excess of 10 percent for limited extension status post patellectomy of the right knee, from January 21, 2015; (6) a compensable evaluation for left knee strain, prior to June 22, 2011; and (7) an evaluation in excess of 20 percent for traumatic arthritis of left knee, prior to June 22, 2011, are dismissed. TDIU As an initial matter, the Veteran applied for increased compensation based on unemployability (TDIU) in August 2009. TDIU was subsequently denied in a July 2010 rating decision. However, the Veteran filed claims for increased ratings for right and left knee conditions, traumatic arthritis of the left great toe (claimed as left foot condition), and hypertension on November 2, 2006. On February 5, 2007, he filed a claim for an increased rating for diabetes mellitus. During the pendency of the appeal, the Veteran has asserted that he is unemployable, in part, due to his service-connected bilateral knee conditions, left great toe condition, hypertension and diabetes mellitus. When evidence of unemployability is submitted during an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the claim for a TDIU is part and parcel of the issues concerning higher ratings, which have been pending since November 2, 2006. The Board observes that the Veteran’s claim for TDIU is limited to consideration of the period prior to June 22, 2011. In this regard, the Veteran has been assigned a total schedular rating since July 22, 2011. A TDIU is considered a lesser benefit than a 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, it is not categorically true that the assignment of a total schedular rating always renders a TDIU claim moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the U.S. Court of Appeals for Veterans Claims (Court) held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability as the factual predicate to qualify for SMC under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). Bradley, 22 Vet. App. at 293. In this case, the assignment of a combined 100 percent schedular evaluation from June 22, 2011, renders the TDIU claim moot from the date of that total rating forward. The Board notes that the Veteran was granted an award of SMC from June 22, 2011 to August 1, 2012, based on a total schedular rating for total left knee replacement rated as 100 percent and additional service-connected disability independently ratable at 60 percent or more. From August 2, 2012 to May 20, 2014, the Veteran had a combined disability evaluation of 100 percent, based on multiple disabilities, none of which was rated at 100 percent disabling. Thus, during this period subsection 1114(s) did not apply. From May 21, 2014 to December 1, 2014, the Veteran was in receipt of SMC based on hypertensive cardiovascular disease with aortic insufficiency status post aortic valve replacement, rated as 100 percent, and additional service-connected disability independently ratable at 60 percent or more. From December 2, 2014 to January 20, 2015, subsection 1114(s) did not apply as the Veteran combined disability evaluation of 100 percent, based on multiple disabilities, none of which was rated at 100 percent disabling. From January 21, 2015, the Veteran has been in receipt of SMC under 38 U.S.C. §1114(k) on account of loss of use of a creative organ. From July 20, 2016 to September 1, 2017, the Veteran was in receipt of SMC under 38 U.S.C. §1114 (s) based on total right knee replacement rated as 100 percent and additional service-connected disability independently ratable at 60 percent or more. Therefore, the Veteran's benefits have already been maximized and there remains no time during the period from June 22, 2011, where the schedular rating is “less than total.” Under such circumstances, the claim for TDIU after June 22, 2011, is moot and the Board will limit its consideration as to whether TDIU is warranted prior to June 22, 2011. In this regard, the Veteran contends that his service-connected disabilities prevent him from securing or following any substantially gainful employment. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude 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 v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). In the present case, from November 2, 2006 to December 21, 2006, the Veteran was service-connected for the following disabilities: (i) traumatic arthritis of the left knee, rated as 20 percent disabling; (ii) arthritis of the left great toe, rated as 10 percent disabling; (iii) degenerative arthritis of the right knee, rated as 10 percent disabling; (iv) hypertension, rated as 10 percent disabling; (v) chronic left knee strain, rated as noncompensable (0 percent); (vi) right ankle perineal tendonitis, rated as noncompensable; (vii) diabetes mellitus, rated as noncompensable; (viii) chronic left knee strain, rated as noncompensable; and (ix) tinea cruris, rated as noncompensable. These disabilities combine to a 50 percent rating (bilateral factor of 3.5 percent for diagnostic codes 5260, 5280, 5257). Thus, from November 2, 2006 to December 21, 2006, the Veteran did not meet the schedular requirements for entitlement to a TDIU. From December 22, 2006 to March 24, 2009, the Veteran was service-connected for the following disabilities: (i) PTSD, rated as 30 percent disabling; (ii) traumatic arthritis of the left knee, rated as 20 percent disabling; (iii) degenerative arthritis of the right knee, rated as 10 percent disabling; (iv) right foot hammer toes, rated as 10 percent disabling; (v) diabetes mellitus, rated as 10 percent disabling; (vi) arthritis of the left great toe, rated as 10 percent disabling; (vii) hypertension, rated as 10 percent disabling; (viii) right ankle perineal tendonitis, rated as noncompensable; (ix) chronic left knee strain, rated as noncompensable; and (x) tinea cruris, rated as noncompensable. These disabilities combine to a 70 percent rating (bilateral factor of 4.2 percent for diagnostic codes 5260, 5280, 5257, 5284). From March 25, 2009 to March 16, 2010, the Veteran was service-connected for the following disabilities: (i) PTSD, rated as 30 percent disabling; (ii) traumatic arthritis of the left knee, rated as 20 percent disabling; (iii) right ankle perineal tendonitis, rated as 20 percent disabling; (iv) degenerative arthritis of the right knee, rated as 10 percent disabling; (v) right foot hammer toes, rated as 10 percent disabling; (vi) diabetes mellitus, rated as 10 percent disabling; (vii) arthritis of the left great toe, rated as 10 percent disabling; (viii) hypertension, rated as 10 percent disabling; (ix) chronic left knee strain, rated as noncompensable; and (x) tinea cruris, rated as noncompensable. These disabilities combine to an 80 percent rating (bilateral factor of 5.3 percent for diagnostic codes 5260, 5280, 5271, 5257, 5284). From March 17, 2010 to June 8, 2011, the Veteran was service-connected for the following disabilities: (i) PTSD, rated as 30 percent disabling; (ii) traumatic arthritis of the left knee, rated as 20 percent disabling; (iii) right ankle perineal tendonitis, rated as 20 percent disabling; (iv) degenerative arthritis of the right knee, rated as 10 percent disabling; (v) right foot hammer toes, rated as 10 percent disabling; (vi) diabetes mellitus, rated as 10 percent disabling; (vii) arthritis of the left great toe, rated as 10 percent disabling; (viii) hypertension, rated as 10 percent disabling; (ix) sciatic nerve peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; (x) sciatic nerve peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; (xi) chronic left knee strain, rated as noncompensable; and (xii) tinea cruris, rated as noncompensable. These disabilities combine to an 80 percent rating (bilateral factor of 6.2 percent for diagnostic codes 5260, 5280, 5271, 5257, 5284, 8520). From June 9, 2011 to June 21, 2011, the Veteran was service-connected for the following disabilities: (i) PTSD, rated as 30 percent disabling; (ii) hypertensive cardiovascular disease with aortic insufficiency, rated as 30 percent disabling; (iii) traumatic arthritis of the left knee, rated as 20 percent disabling; (iv) right ankle perineal tendonitis, rated as 20 percent disabling; (v) degenerative arthritis of the right knee, rated as 10 percent disabling; (vi) right foot hammer toes, rated as 10 percent disabling; (vii) diabetes mellitus, rated as 10 percent disabling; (viii) arthritis of the left great toe, rated as 10 percent disabling; (ix) hypertension, rated as 10 percent disabling; (x) sciatic nerve peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; (xi) sciatic nerve peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; (xii) chronic left knee strain, rated as noncompensable; and (xiii) tinea cruris, rated as noncompensable. These disabilities combine to a 90 percent rating (bilateral factor of 6.2 percent for diagnostic codes 5260, 5280, 5271, 5257, 5284, 8520). The Board notes that for the period prior to June 22, 2011, the Veteran does not have one disability rated as 40 percent for the purpose of establishing the schedular TDIU requirement. 38 C.F.R. § 4.16 (a). However, 38 C.F.R. § 4.16 (a)(1) permits that disabilities of one or both upper or lower extremities, including the bilateral factor, may be considered as one disability. Treating the Veteran’s disabilities of the bilateral knees, left foot, and right foot as one disability, from December 22, 2006, the Veteran has one disability ratable as 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Thus, at all times from December 22, 2006, the Veteran has had at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more, and he therefore has met the schedular requirements for a TDIU. Accordingly, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16 (a). The evidence shows that the Veteran last worked in a substantially gainful occupation in May 2009. The Veteran reported that he was previously employed as a self-employed plumber and had last worked full-time on May 28, 2009. See August 2009 VA 21-8940. The Veteran graduated from high school and completed a 5-year apprenticeship program which resulted in the award of a plumbing degree. Id. After a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities, alone, rendered him unable to secure or follow a substantially gainful occupation as of May 28, 2009. In this regard, the Board observes that the Veteran’s service-connected disabilities of the bilateral lower extremities (traumatic arthritis of the left knee; chronic left knee strain; right ankle perineal tendonitis; degenerative arthritis of the right knee; right foot hammer toes; and arthritis of the left great toe), when viewed as one disability, rendered the Veteran unable to obtain and maintain substantially gainful employment. A May 2008 VA examination notes that the Veteran had been a plumber since 1970 but had recently had to adjust in his work due to his disabilities. The Veteran used a brace for his right knee and foot as well as custom made orthotic shoes. The Veteran had to limit his standing and kneeling, and he had stopped doing certain types of work such as installing sewer systems and decking. The Veteran reported that he tried to avoid climbing and carrying heavy objects. He also reported that he could no longer drive more than a half hour without experiencing left foot pain. See May 2008 VA Examination. A June 2008 VA examination documents that the Veteran experienced severe, constant throbbing right knee pain with stiffness, fatigue, and lack of endurance. The Veteran reported that his knee would give way and he endorsed flare-ups with severe pain. The Veteran’s left knee pain was severe and constant, and the Veteran indicated that it was worse than his right knee. There was left knee stiffness, fatigue, and lack of endurance with daily flare-ups, especially when going up or down steps. The Veteran reported the use of knee braces bilaterally, and indicated that his job required him to climb and descend stairs, which aggravated his pain. See June 2008 VA Examination. A March 2009 VA podiatry examination documents that the Veteran had an increased propensity to inversion sprains of his service-connected right ankle that occurred as many as two to three times a week. The Veteran reported symptoms of pain, weakness, swelling, fatigue, and lack of endurance. Standing and walking exacerbated these problems and the Veteran reported that he had trouble ambulating in a normal manner and often tripped. The Veteran used a brace for his condition. The examiner noted that the Veteran had been employed in the plumbing and renovation business since 1978. The Veteran had been self-employed since 1984 and reported that it was very painful for him to work, although he continued to work to provide income for his family. The Veteran reported that he made alterations in his work to accommodate his disability. He no longer built decks and could not carry heavy items up and down stairs. He further reported being hesitant to do different activities out of fear of recurrent injuries. See March 2009 VA Podiatry Examination. VA treatment records that the Veteran tripped and fell on his right side in May 2009 while walking towards a building at a VA medical center. In his August 2009 application for compensation based on unemployability, the Veteran indicated that following his injury in the May 2009 fall, it was hard for him to work. He reported being light headed with shaky hands and whole-body aches. The Veteran reported that his bilateral knee braces caused pain and that he experienced shoulder pains, all of which prevented him from reaching and being able to do his job. See May 2009 VA Treatment Record; August 2009 VA 21-8940. A September 2009 podiatry examination documents that the Veteran was using bilateral knee braces and custom-made orthotic shoes. The Veteran reported an increase in symptoms of his service-connected left great toe, with sharp, stabbing, aching pain. He had occasional numbness, pins and needles sensations in the same local and reported that his great toenail frequently sloughed off. In addition to pain, he complained of weakness, stiffness, swelling, redness, fatigue, and lack of endurance. The Veteran experienced flare-ups with precipitating factors including driving, walking greater than one block, and going up stairs or standing on ladders. The Veteran reported that he was totally incapacitated during flare-ups and must sit down until symptoms subsided. Due to his increased symptoms, the Veteran indicated that he had to decrease his workload by 50 to 70 percent. See September 2009 VA Podiatry Examination. After considering the above-cited evidence, the Board finds that when the Veteran's occupational training and education are taken into consideration, his service-connected disabilities of the bilateral lower extremities render him unemployable. Specifically, the Veteran has worked almost 40 years as a plumber, as well as performing some other renovation services. The Veteran was self-employed for most of this time. The Board finds that the severity of the Veteran’s service-connected bilateral lower extremity disabilities rendered him no longer able to perform this type of work. The Veteran’s bilateral lower extremity disabilities resulted in symptoms of severe, at times constant pain; weakness; stiffness; swelling; fatigue; and lack of endurance. The Veteran could no longer lift heavy objects and was forced to abandon certain aspects of his business, such as deck repairs, altogether. The Veteran’s work required him to climb and descend stairs and ladders, activities that caused pain and aggravation to his conditions, and became all but impossible due to his symptoms and given his use of bilateral knee braces. The Veteran also experienced flare-ups that at times forced complete work stoppages. The Board observes that the record indicates that these symptoms were present prior to a May 2009 fall that caused injury to the Veteran’s right side, however the fall seems to have exacerbated the Veteran’s occupational limitations and was arguably due to his service-connected bilateral lower extremity disabilities given his prior reports of instability and falling. Although the evidence shows that the Veteran continued to attempt to work as late as September 2009, he had already decreased his workload by up to 70 percent. The Board is not persuaded that the Veteran has a significant amount of transferable skills that would permit him to obtain and maintain substantially gainful sedentary employment not involving the use of his lower extremities. The Board emphasizes that the test is not whether the Veteran is precluded from all types of employment, such as sedentary employment, but whether such employment is realistically within the physical and mental capabilities of the claimant. Given that the Veteran's primary training and work experience is in a non-sedentary field, specifically plumbing, and that his bilateral lower extremity disabilities essentially preclude gainful physical work, the Board resolves all reasonable doubt in the Veteran's favor and determines that his service connected disabilities render him unemployable. 38 U.S.C. §§ 5107 (b), 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.400, 4.3. Based on the above, the Board finds that a TDIU is warranted from May 28, 2009, the day the Veteran indicated that he stopped working, as this is the earliest date on which it is factually ascertainable that the Veteran was unable to maintain substantially gainful employment due to his service-connected disabilities. Prior to that date, by his own report, the Veteran was actually engaged in substantially gainful employment. Accordingly, entitlement to a TDIU prior to May 28, 2009, is not warranted. See Faust v. West, 13 Vet. App. 342 (2000) (where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343 (c)(1)). To the extent that VA treatment records and examination reports indicate that the Veteran continued to attempt to work between May 28, 2009 and September 2009, the Board finds that evidence suggests that such work was marginal as the Veteran indicated that he had cut approximately 70 percent of his work during that time period and had significant limitations on what, if any, of his typical work could be performed. In summary, the Board finds that from May 28, 2009, the Veteran's service-connected disabilities, alone, rendered him unable to secure or follow a substantially gainful occupation. The claim, therefore, is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis