Citation Nr: 1807965	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  14-37 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

J. George, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1970 to September 1982.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in February 2012 by the Department of Veterans Affairs (VA) Regional Office (RO).

In conjunction with this claim, the Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge (VLJ) in March 2016.  The Veteran was also afforded a Board hearing before a different VLJ in conjunction with a claim for an increased rating of his right knee disabilities in August 2016.  That claim has since been adjudicated in a separate November 2017 Board decision.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2).


FINDING OF FACT

For the relevant appeal period, the Veteran has not maintained gainful employment and his service-connected disabilities prevent him from working.


CONCLUSION OF LAW

For the relevant period, the criteria for TDIU have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16.  Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19.  To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.  38 C.F.R. § 4.16(a). 

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991).

Analysis

The Veteran has not engaged in gainful employment in quite some time.  Social Security Administration (SSA) records reveal that the Veteran stopped working on November 23, 2009.  For two years before that time, the Veteran worked part-time ran a janitorial service.  This generated income of around $1,000 per month.  Before that, the Veteran was a full-time truck driver.  He stopped working as a truck driver on December 17, 2007.  This is consistent with his testimony at the March 2016 Board hearing that he last worked in 2007.  From this work history, it is clear that the Veteran has not maintained gainful employment since filing his claim for TDIU.

As noted in the April 2016 remand, the Board has already found that the Veteran is unable to establish or maintain gainful employment because of his service-connected disabilities during the course of the appeal.  In a June 2011 VA examination, the examiner opined that the Veteran was not able to establish or maintain gainful employment in a physical capacity.  The examiner also noted that it was unclear why the Veteran would be unable to attain and maintain gainful employment in a sedentary position, but for his upcoming total knee replacement that was going to require several months of unemployment, for which time the Veteran was compensated at the 100 percent rating under DC 5055.  SSA has also determined that the Veteran became too disabled to work because of his osteoarthritis and allied disorders and anxiety related disorders as of November 23, 2009.  The SSA descriptions of disabilities are consistent with the service-connected disabilities listed above.  Therefore, the Board continues to find that the Veteran is unable to establish or maintain gainful employment based on his service-connected disabilities for the relevant appeal period.

At the time of the April 2016 Board remand, the schedular requirements of 38 C.F.R. § 4.16(a) were not met.  The Board noted that it was not authorized to award extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance.  See Wages v. McDonald, 27 Vet. App. 233 (2015).  However, in light of the awards granted in the Board's recent November 2017 decision, the schedular requirements are not met under 38 C.F.R. § 4.16(a) throughout the relevant appeal period.  Therefore, a TDIU is warranted.


ORDER

TDIU is granted.



____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs