Citation Nr: 19190871 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 18-00 255 DATE: December 3, 2019 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is granted. INTRODUCTION The Veteran served on active duty from November 1977 to November 1980. FINDING OF FACT Throughout the period on appeal, the Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, “when there is present any impairment of mind or body 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), 4.15. “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Factual Background and Analysis As a threshold matter, the Board notes service connection has been established for lumbar spine degenerative arthritis with intervertebral disc syndrome, rated as 40 percent disabling; right knee instability, rated as 20 percent disabling; degenerative arthritis of the right and left knee, left and right lower extremity sciatic radiculopathy, and left lower extremity femoral radiculopathy, each rated as 10 percent disabling, as well as bilateral knee scars, which have been assigned noncompensable disability ratings. His combined rating has been 80 percent throughout the pendency of this appeal. As such, the Veteran has satisfied the scheduler criteria for a TDIU under 38 C.F.R. § 4.16 (a). After consideration of the record and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected disabilities, in concert, have been sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. The Veteran has previously worked as a correctional officer and correctional facility counselor. These jobs, and virtually any other job, require the Veteran to be able to attend a normal 8-hour work day. However, the evidence of record shows that as a result of his service-connected disabilities, he would not be able to stand, sit, or walk for any reasonable length of time. During his most recent VA general medical examination, the examiner found the Veteran would be unable to run or jump as a result of his knees frequently giving way. She also indicated the Veteran would only be able to work for 2 to 3 hour shifts, and would require several breaks. His knee disabilities would also result in limited walking, squatting, using stairs, lifting or carrying. With respect to his lumbar spine disability, the examiner stated the Veteran would be unable to run or walk, and must avoid squatting, lifting, carrying, pushing or pulling activities. The examiner also stated that with respect to his lower extremity radiculopathies, the Veteran experiences a decreased activity tolerance due to fatigue and weakness, as well as a loss of balance. The Board does acknowledge that the examiner found the Veteran would be able to perform sedentary employment with respect to each of his disabilities in isolation; however, she failed to provide an opinion as to whether the cumulative impact of the Veteran’s disabilities would preclude him from engaging in substantially gainful employment. In this regard, the Board notes an August 2016 statement from the Veteran’s treating VA physician, which indicates his multiple chronic medical disabilities would indeed render him unemployable. Likewise, the Veteran’s private primary care physician of several years also provided a letter in November 2017, wherein he found the Veteran unable to work in any capacity, to specifically include sedentary work, due to his chronic pain associated with his back and knees. The Board also observes the Veteran has obtained a four-year college degree in Social Work; however, as noted in his Vocational Rehabilitation reviews, he was unable to obtain gainful employment in this career field because of the physical requirements associated with that profession. In sum, the evidence indicates the Veteran has experienced significant physical functional limitations resulting from his service-connected lumbar spine, bilateral knee, and lower extremity radiculopathy disabilities throughout the period under appeal. Affording the Veteran the benefit of all reasonable doubt, the Board is satisfied the evidence establishes his service-connected disabilities were sufficiently severe to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Accordingly, a TDIU is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.