Citation Nr: 21061703 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-46 937 DATE: October 5, 2021 ORDER Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Service connection has been established for bilateral pes planus with right first metatarsophalangeal joint traumatic arthritis rated as 30 percent disabling; right lower extremity peripheral neuropathy rated as 20 percent disabling; a right foot scar rated as 20 percent disabling; hemorrhoids rated as 20 percent disabling; bilateral hearing loss rated as 10 percent disabling; tinnitus rated as 10 percent disabling; benign paroxysmal positional vertigo rated as 10 percent disabling; and otitis externa and a right foot scar rated as noncompensable. The Veteran has a combined 80 percent service-connected disability rating. 2. The service-connected disabilities are of such severity as to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1975 to April 1976. TDIU Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service connected disabilities are sufficient to make the veteran unemployable without regard to either advancing age or the presence of any nonservice connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. Total ratings for compensation purposes are assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. If there is only one such disability, that disability shall be rated 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; and/or disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric. The existence or degree of nonservice connected disabilities or previous unemployability status will be disregarded where the percentages for the service connected disability or disabilities are met and in the judgment of the rating agency such service connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). Service connection has been established for bilateral pes planus with right first metatarsophalangeal joint traumatic arthritis rated as 30 percent disabling; right lower extremity peripheral neuropathy rated as 20 percent disabling; a right foot scar rated as 20 percent disabling; hemorrhoids rated as 20 percent disabling; bilateral hearing loss rated as 10 percent disabling; tinnitus rated as 10 percent disabling; benign paroxysmal positional vertigo rated as 10 percent disabling; and otitis externa and a right foot scar rated as noncompensable. The Veteran has a combined 80 percent service-connected disability rating. The bilateral pes planus, right lower extremity peripheral neuropathy, and right foot scar are considered as a single disability for purposes of 38 C.F.R. § 4.16(a) and are rated as 60 percent in combination. 38 C.F.R. § 4.25. Therefore, the Veteran meets the schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). In his March 2019 Veteran's Application for Increased Compensation based on Unemployability, VA 21-8940, the Veteran reported that he last worked in January 2014 as a security guard. (Continued on the next page) A July 2018 vocational assessment from W. Cody, M.S., reports that "it is at least as likely as not that [the Veteran] is precluded from securing or following a substantially gainful occupation due to the totality of the combined effects of his service connected disabilities" since 2014. The Veteran meets the schedular criteria for assignment of a TDIU. He has reported that he has not worked since 2014. The July 2018 private vocational assessment concluded that the service connected disabilities caused him to be unable to secure and follow any form of substantially gainful employment. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the service connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Therefore, the claim for TDIU is granted. 38 C.F.R. § 4.16. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.