Citation Nr: 20007972 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 12-01 353 DATE: January 30, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is service-connected for status post left knee arthroplasty, rated as 60 percent disabling since March 1, 2009. 2. The evidence of record does not establish that the Veteran’s service-connected left knee disability prevents him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1962 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by the Nashville, Tennessee Regional Office (RO) of the United States Department of Veterans Affairs. In December 2019, the Board requested clarification from the Veteran as to whether he wished to withdraw his appeal. He was asked to provide a written letter indicating such within 30 days; if no response was received the Board would proceed to adjudicate the appeal. As the Veteran has not provided a response, the matter must continue. The Veteran seeks entitlement to TDIU due to his service-connected left knee disability; he reports that he has not been able to work since January 2007. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran meets the threshold eligibility requirement, as his knee is rated 60 percent disabling. Unemployability is found when a Veteran cannot secure or retain “substantially gainful employment.” While this is not defined in the regulations, “marginal employment” is excluded from the concept. Based on this, courts have concluded that substantially gainful employment is any occupational activity that provides a living wage above the current poverty level, a position now reflected in the regulations. 38 C.F.R. § 4.16 (a); see, e.g., Faust v. West, 13 Vet. App. 342 (2000). Inability to maintain employment in a former occupation or to secure it in a more lucrative or preferred occupation does not equate to unemployability; the standard is inability to maintain any substantially gainful employment occupation, rather than inability to be employed in a former or preferred occupation. A finding of entitlement to TDIU is dependent upon consideration of the impact of a Veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. Age is not a factor. 38 C.F.R. § 4.19. The Veteran has indicated that he has completed high school. He was employed as a hair stylist and owned his own hair salon. In July 2009, the Veteran underwent a VA knee examination. The examiner noted that the Veteran’s left knee symptoms caused decreased mobility, problems with lifting and carrying, difficulty reaching and decreased strength in his lower extremity. The examiner concluded that the Veteran “is unable to work in any capacity that involves lifting or any activity that involves walking more than 150 feet at any given time. He has limited mobility and strength in his knee and is best suited for sedentary duty.” Regarding the use of the phrase “sedentary employment,” VA uses the term sedentary work or employment in discussions of ability to secure and follow a substantially gainful occupation. The phrases sedentary work or sedentary employment are not included in the current statutes or regulations concerning VA benefits. Withers v. Wilkie, 30 Vet. App. 139, 142 (2018). When a VA examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that a veteran is incapable of performing. Id. at 147-148. The ability to perform various forms of work can be a relevant consideration, but the Board must explain how an examiner’s description of a veteran’s specific functional limitations supports a conclusion that a veteran is able to secure or follow a substantially gainful occupation consistent with his education, training, and work history. Id. at 142. Here, the examiner’s use of the term was in the context of reporting functional limitation regarding the Veteran’s physical abilities. The term as used in these reports meant that the Veteran could work at a desk or similar setup, providing the position involved sitting with required walking limited to no more than 150 feet. After a thorough review of the record, the Board concludes that the evidence does not demonstrate that the Veteran’s service-connected left knee disability prevents him from obtaining or maintaining substantially gainful employment. The medical evidence of record reveals no hospitalizations, surgeries, emergency room visits or intensive outpatient treatment for the Veteran’s service-connected left knee disability during the period on appeal. The opinion of the VA examiner does not indicate that the Veteran’s left knee disability precludes him from securing and following substantially gainful employment. The Board notes that the examiner concluded that the Veteran is best suited for work that does not require extensive physical exertion. His physical abilities such as walking or lifting are limited by his left knee, but he is capable of sitting and processing intellectually, as demonstrated by his experiences as a small business owner. Thus, the Veteran does not meet the criteria for TDIU as the evidence does not show that the Veteran is incapable of obtaining and maintaining gainful employment due to his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, Associate 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.