Citation Nr: 21063917 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 12-04 237 DATE: October 18, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the entire period on appeal prior to July 16, 2010, is granted. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected disabilities precluded him from securing and following gainful employment given his education and work history. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for a TDIU due to service-connected disabilities have been met from February 20, 2008 until July 15, 2010. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United Stats Navy from June 1987 to May 1994. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the December 2008 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, confirmed and continued the 10 percent evaluation for the service-connected right knee degenerative changes, 10 percent disability evaluation for right knee post ALC reconstruction, and 10 percent disability evaluation for the residuals of donor site surgery, left knee with chondromalacia. The rating decision also denied service connection for S1 and confirmed the previous denial of service connection for herniated disc L3-4, L4-5. The Veteran's Notice of Disagreement (NOD) was received in September 2009. The Statement of the Case was issued in October 2011, and the Veteran's VA Form 9, substantive appeal to the Board, was received in November 2011. In April 2015, the claims were remanded by the Board for further development and adjudication. The claims were once again remanded in a May 2017 Board decision. That decision found that a claim for a TDIU due to service-connected disabilities was part and parcel of an increased rating claim, referring to the Veteran's October 2015 VA Form 21-8940. Rice v. Shinseki, 22 Vet. App. 447 (2009). Most recently, the April 2021 Board decision granted entitlement to a TDIU from July 16, 2010, and remanded entitlement to a TDIU prior to July 16, 2010 for further development and adjudication. Entitlement to a TDIU prior to July 16, 2010. The Veteran contends that he is entitled to a TDIU for the period on appeal before July 16, 2010 due to his service-connected disabilities. As mentioned above, in this case the claim for a TDIU is part and parcel of the increased ratings claims decided in the December 2008 rating decision. The Veteran filed his claims for increased ratings for the service-connected knee disabilities on February 20, 2008. Therefore, the period on appeal for the grant of a TDIU is from February 20, 2008 until July 15, 2010. Total disability based on unemployability exists 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. See 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets the schedular threshold percentage requirements under 38 C.F.R. § 4.16 (a), and, 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, this disability must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more and the combined evaluation must be 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16 (a). From February 20, 2008, and for the remainder of the period on appeal, the Veteran's total disability rating was 70 percent. His service-connected disabilities included right knee instability, residuals of status post ACL reconstruction, rated as 10 percent disabling from April 1, 2005; right knee semilunar cartilage dislocation, rated as 20 percent disabling from February 20, 2008; lumbosacral strain and herniated disc L3-4, L4-5, rated as 10 percent disabling from April 18, 2002; residuals of donor site surgery, left knee with chondromalacia patella associated with right knee instability, residuals of status post ACL reconstruction, rated as 10 percent disabling from May 3, 1994; bronchial asthma, rated as 10 percent disabling from May 3, 1994; periodic tinnitus due to head injury, rated as 10 percent disabling from April 18, 2001; bilateral pes planus with enlargement of the 5th metatarsophalangeal joints, rated as noncompensable from May 3, 1994; and, laceration scar, scalp, rated as noncompensable from May 3, 1994. The Veteran meets the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) for the entire period on appeal. Specifically, the record shows that his right and left knee disabilities stemmed from his in-service right knee ACL tear. Accordingly, the Veteran's right and left knee disabilities are considered one for the purposes of a TDIU, as they stem from the same etiology. With the Veteran's right and left knee disabilities being combined as one, he has a single disability rated as 40 percent or more, with a total disability rating of 70 percent or more. As the Veteran's meets the schedular criteria for a TDIU for the entire period on appeal, the remaining question is whether the Veteran's service-connected disabilities rendered him unemployable. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. See 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but age and any impairment caused by nonservice-connected disabilities may not be considered. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination considering the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2."). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Turning to the evidence of record, a February 2007 VA Form 21-8940 indicates that the Veteran's highest level of education is a college degree. His last full-time job is listed as a social worker at a youth home, ending in October 2004. The Veteran indicated that he aggravated his knee and was unable to perform his job tasks. An August 2008 letter from the Veteran's physician indicates that the Veteran walks with a significant antalgic gait secondary to his knee problem, and that this could cause or exacerbate his back pain. The letter also indicates that the Veteran is incapacitated and bedbound approximately 3 days per week, 12 days per month, or 144 days due to back pain. An October 2008 VA examination report with respect to back and knees indicates that the Veteran has a long-standing history of bilateral knee problems stemming back to a right knee ACL tear. It was noted that the Veteran was able to perform his activities of daily living but had difficulty shopping if he needs to walk long distance. It was also noted that the Veteran did not use assistive devices for ambulation but used knee braces for pain. The Veteran reported owning his own construction company and closing it down due to lifestyle choices. He stated that he was on the road too much and wanted to be near family. The Veteran reported that since that time he had trouble obtaining and sustaining gainful employment with attempts at social work and working at a youth home, due to requirements of travel and frequent ambulation. The Veteran reported not having gainful employment since 2004 and aggravating his right knee while attempting to restrain a resident at the youth home. The Veteran also reported a history of progressive back pain radiating down to the left lower extremity. It was noted that he has not had physician prescribed bed rest and has treated his back pain with medications. It was also noted that he did not use assistive devices for ambulation and is able to perform daily activities with limitation due to back pain. The Veteran also reported not seeking sedentary employment due to back pain flare ups radiating to his left leg with prolonged sitting. The VA examiner concluded that the Veteran would have difficulty in a labor position but not a sedentary position. The VA examiner noted that the Veteran reported being unable to perform sedentary employment due to left leg radiating pain and not specifically back pain, which the Veteran reported as being separate. The VA examiner also concluded that the Veteran's back and knee disabilities are of moderate degree of severity and moderately affected occupational employability. The VA examiner noted the Veteran's lumbar strain would prevent him from labor type occupation but would not restrict sedentary employment, while his disc herniation seems to be the main obstacle to a sedentary position. Based on a review of the entire record, the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities precluded him from securing and maintaining gainful employment during the period on appeal given his education and work history. As such, TDIU is granted for the period on appeal from February 20, 2008 until July 15, 2010. The evidence shows that the Veteran completed four years of college and owned his own construction company which he closed down. The evidence also shows that his last full-time job was a social worker in a youth home which he quit in October 2004 due to aggravating his right knee. The Veteran contends that the combined physical limitations of his service-connected disabilities preclude him from securing and maintaining gainful employment. With all reasonable doubt resolved in the Veteran's favor, the evidence supports this contention. Specifically, the Veteran's physician indicates that the Veteran's back disability causes him to be bed ridden, unable to perform any duties, approximately three days per week. The October 2008 VA examination report indicates that the Veteran's service-connected knee disabilities cause antalgic gait and that his service-connected disabilities moderately affect his activities of daily living and employment. The VA examiner concluded that the Veteran would not be able to perform any employment that would require labor. The VA examiner also noted that the Veteran reported being unable to perform sedentary employment as his back pain caused radiating pain into his left leg after prolonged sitting. Finally, the VA examiner indicated that the Veteran's disc herniation seems to be the main obstacle to a sedentary position. Given the August 2008 letter indicating that the Veteran requires at least 3 days of bed rest due to his back pain, combined with the October 2008 VA examination report, the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities preclude him from securing and maintaining gainful employment. In other words, the evidence shows that the Veteran's back and knee disabilities cause physical limitations such as antalgic gait, inability to walk long distances, and bedrest at least three days per week. These physical limitations as likely as not precluded the Veteran from maintaining all forms of gainful employment during the period on appeal. The Veteran's lay statements, his VA treatment records, the August 2008 letter from his physician, and the October 2008 VA examination report support these findings. Given that the Veteran is unable to perform any labor, and requires three days of bed rest per week, it is unlikely that he will be able to perform any full-time employment, including sedentary work. While the October 2008 VA examination report indicates that the Veteran doesn't require physician prescribed bed rest, greater probative value is afforded to the August 2008 letter from the Veteran's physician, as they treated the Veteran and are more familiar with his disabilities. (Continued on the next page) When all of the evidence is considered collectively, including the Veteran's education and employment history, the evidence is in relative equipoise and therefore the benefit of the doubt is resolved in the Veteran's favor. Accordingly, in viewing the evidence in the light most favorable to the Veteran, the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities, and therefore entitlement to a TDIU is warranted for the period on appeal, from February 20, 2008 until July 15, 2010. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.