Citation Nr: 1815001 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 11-05 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from February 1983 to July 1988. This matter comes before the Board of Veterans' Appeals Board (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2018, and transcript of the hearing is of record. A request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, can be a part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of TDIU was raised by the record as part of the Veteran's claim for increased rating for a right knee disability. In December 2013, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a VA examination. In accordance with Stegall, the Veteran received a VA examination in December 2016 that specifically discussed the effect of the Veteran's service-connected disabilities on his employability. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's service-connected disability precludes substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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) (2017). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a) (2017). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must take into account the individual's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Veteran's right knee disability is assigned a 60 percent rating. Thus, the criteria set forth in 38 C.F.R. § 4.16(a) have been met. The Veteran received a VA examination in October 2012 and the VA examiner noted the Veteran could not engage in any type of work that involved heavy lifting or carrying. The Veteran could also not kneel or squat at all. A January 2013 VA Vocational Rehabilitation examiner found the Veteran met the criteria for an employment handicap because his service-connected disabilities contributed in substantial part to his vocational impairment. Similarly, at his December 2013 VA examination the examiner noted prolonged standing, carrying, and walking were problematic for the Veteran. The Veteran's most recent VA examination was in December 2016. The VA examiner concluded the Veteran could engage in sedentary type of employment where he had the ability to move around every 30 minutes. However, the Veteran would be precluded from engaging in any type of physical labor that required walking or standing more than getting to and from a work station. The evidence of record also contains lay statements from the Veteran concerning his employability. In a March 2014 statement, the Veteran noted due to his ongoing knee problems and need for pain medication he was unable to attend school or any type of work training. The pain medication made him feel as if he was in a fog. Further, at his January 2018 Board Hearing the Veteran detailed that his need for pain medication, due to his chronic knee pain, has made him unable to pass a drug test necessary for a job. The Veteran noted he worked in the Navy as a hospital corpsman and his jobs post military were in construction and maintenance. Both type of jobs involved physical labor. The Board finds that the Veteran is unable to engage in any physical labor. While the Board acknowledges the Veteran could work in a sedentary job, when determining whether TDIU is warranted the Board takes into account the individual's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Veteran's past work history includes jobs that all involve physical labor. The Board finds based on the Veteran's employment and work history the Veteran's skills would not be transferrable to a sedentary job. Thus, the Board finds the Veteran is unemployable and a TDIU is warranted. ORDER A TDIU is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs