Citation Nr: 21003956 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 12-20 847 DATE: January 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), except for the period from October 31, 2012 to December 31, 2013, is granted. FINDING OF FACT For entire appeal period, except for the period from October 31, 2012 to December 31, 2013, the Veteran meets the schedular criteria for a TDIU, and his service-connected status post right patellofemoral prosthesis revision (right knee condition) and low back strain with disc with disc herniation and arthritis (back condition) has rendered him unable to secure or follow a substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU, except for the period from October 31, 2012 to December 31, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1975 to July 1978. In an April 2017 decision, the Board of Veterans’ Appeals (Board) denied service connection a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, while the case was pending at the Court, the parties entered into a Joint Motion for Remand (JMR), requesting that the Court vacate the Board’s decision to deny service connection for an acquired psychiatric disorder. The Court subsequently granted the JMR in a June 2019 order. In January 2020, the Board remanded the issue of entitlement to a TDIU for further development. Specifically, the Board instructed the regional office (RO) to schedule the Veteran for a VA examination pertaining to his right knee and back conditions. TDIU The Veteran contends that he has been unable to work due to his service-connected right knee and back conditions. See August 2010 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340. The Board may assign total disability ratings for compensation where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairments caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As an initial matter, the Board notes that a claim for a TDIU is a form of increased rating claim, and as such, the rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413 (1999). Therefore, the relevant temporal focus for this matter begins August 21, 2009, or one year prior to the date of receipt of the Veteran’s TDIU application. See 38 C.F.R. § 3.400. The Board further notes that the Veteran is currently service connected for a right knee condition, rated at 100 percent from May 18, 2007, 60 percent from July 1, 2008, 100 percent from May 19, 2009, 60 percent from August 1, 2009, 100 percent from October 31, 2012, and 60 percent from January 1, 2014; and back condition, rated at 40 percent from March 12, 1996.  His combined disability rating was 100 percent from May 18, 2007, 80 percent from July 1, 2008, 100 percent from May 19, 2009, 80 percent from August 1, 2009, 100 percent from October 31, 2012, and 80 percent from January 1, 2014. Accordingly, the Veteran meets the schedular TDIU criteria for the entire period on appeal. 38 C.F.R. § 4.16(a). However, the Board notes that the issue of entitlement to a TDIU is moot for the period from October 31, 2012 to December 31, 2013 as the Veteran was awarded a 100 percent schedular evaluation for his right knee condition. See Bradley v. Peake, 22 Vet. App. 280 (2008). For the entire appeal period, except for the period from October 31, 2012 to December 31, 2013, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his right knee condition. The Veteran’s August 2010 TDIU application shows that the Veteran completed high school. The Veteran did not have any specialized education or training. He was last employed in March 2003 as a driver. The Veteran checked “yes” to the question of whether he left his last job/self-employment because of his disability. In November 2010, the Veteran appeared for a VA examination in which he reported he worked as a factory worker for approximately 18 years, as well as a driver for two years. He also reported he had not worked since 2003. Further, he stated that prolonged walking of more than a mile and climbing more than a flight of stairs caused more pain and that he had been using a cane almost daily for his back and knee pain for the prior five years. The November 2010 examiner concluded that the Veteran’s medical conditions were likely not preventing him from doing his daily routine simple activities and sedentary type of work. However, the Veteran reported that his low back pain increased with prolonged sitting of more than one hour, prolonged standing of more than half an hour, walking more than one mile, as well as an inability to handle weights of more than 15 pounds or frequent bending. A copy of a February 2014 Social Security Administration (SSA) decision was associated with the Veteran’s claim file in August 2020. The administrative law judge (ALJ) found that the Veteran had not engaged in substantial gainful activity since March 2007 due to his degenerative joint disease of the bilateral knees, degenerative joint disease of the right acromioclavicular joint, and degenerative disc disease of the cervical spine. However, he also found that the Veteran’s “right knee impairment would be sufficient to reduce [him] to sedentary work without consideration of his other impairments.” The SSA ALJ concluded that that the Veteran was unable to perform any past relevant work and that his acquired job skills did not transfer to other occupations with the residual functional capacity. Finally, considering the Veteran’s age, education, work experience, and residual functional capacity, there were no jobs that exist in significant numbers in the national economy that the Veteran could perform. The Veteran underwent another knee conditions VA examination in February 2020, as well another VA examination for his back. He reported that he has had lock up a few times, gets swelling in both knees, cannot squat, and has difficulty using stairs. The examiner noted that the Veteran has difficulty standing or walking for prolonged periods. As for his back, the Veteran reported using a brace, cane, crutches, and walker, and the examiner noted that the Veteran’s back condition does not impact his ability to work. Taking due account of the Veteran’s education and employment history, the Board finds that the severity of the Veteran’s right knee and back symptoms renders employment impossible under the circumstances of this case. As illustrated above, the Veteran has credibly reported that he was unable to sustain full-time employment of any sort during the entire period on appeal, and the medical evidence reflects that his knee and back trouble was severe and caused physical impairment to the point that the expectation of such employment, whether physical or sedentary, would be considered objectively unreasonable. Though VA examiners have opined that the Veteran is capable of sedentary work, the Veteran credibly reported increased pain with prolonged sitting. Accordingly, based on the above evidence, the Board finds that the Veteran had been unable to engage in substantially gainful employment based on his service-connected right knee and back conditions. Affording the Veteran the benefit of the doubt, the Board concludes that entitlement to a TDIU should be granted for the entire period on appeal, except for the period from October 31, 2012 to December 31, 2013. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.