Citation Nr: 21064771 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 13-36 278 DATE: October 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from October 20, 2004, to April 7, 2010, is granted. FINDING OF FACT From October 20, 2004, to April 7, 2010, the Veteran's service-connected disabilities render him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW From October 20, 2004, to April 7, 2010, the criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969. In June 2015 and November 2018, the Board remanded the claim for further development. In a June 2020 decision, the Board denied the Veteran's claim for entitlement to service connection for TDIU. However, in June 2021, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand vacating the Board's decision and remanding the claim for further development. The parties to the joint motion agreed that the Board failed to explain how the Veteran's history, education, skill, and training supported a finding that he was employable even considering his ongoing pain and swelling of his right ankle and bilateral knees. Entitlement to TDIU 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is 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 v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 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 not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis The Veteran contends that he is unemployable due to his service-connected disabilities. In November 2018, the Board awarded an earlier effective date of October 20, 2004, for the 20 percent rating for the Veteran's bilateral knee disability. Based on this award, and as noted below, the Veteran met the schedular requirements for TDIU under 38C.F.R. §4.16(a) on that date. As such, the period relevant to the appeal begins on October 20, 2004. From October 20, 2004, to April 7, 2010, the Veteran's service-connected disabilities included ischemic heart disease, rated at 10 percent effective August 20, 2001; history of right foot calcaneus comminuted fracture with subtalar ankylosis, os calcis spur removal, and triple arthrodesis, rated at 30 percent effective February 1, 1971, and November 1, 1984; diabetes mellitus type II (DM II) with early background diabetic retinopathy, rated at 20 percent effective May 8, 2001; bilateral knee degenerative joint disease, each rated at 20 percent effective October 20, 2004; and right lateral foot adherent scar rated at 10 percent effective February 1, 1971. His combined rating was 80 percent effective October 20, 2004, to April 6, 2010. For the entire period on appeal, the Veteran met the schedular requirements for TDIU under 38C.F.R. §4.16(a). Although outside the period on appeal, in August 2012, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran graduated from high school and completed two years of college. He last worked full-time in 1985 as truck driver. He reported becoming too disabled to work in 1985. Before becoming too disabled to work, the Veteran had not had any education and/or training. After becoming too disabled to work, he took accounting classes at OTC college. However, the pain in his legs and knees became too severe and interfered with studying. Additionally, he was unable to ambulate across the campus to get to his classes. In October 2004, the Veteran was seen for severe left knee pain. The Veteran stated that the pain was so severe, he was unable to walk on his left leg. The examiner stated that the knee was tender to touch, with minimal range of motion, and the Veteran was unable to bear weight. In October 2005, the Veteran was seen for pain in his knees and ankles. The Veteran used a walker for gouty arthritis of both knees. In June 2007, the Veteran's physician cleared the Veteran to perform activities such as walking, light to moderate activities, and light restrictive work. Regarding the Veteran's foot disability, his treating physician noted chronic tenderness in the foot. In June 2009, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral knee disability. The examiner diagnosed the Veteran with bilateral knee degenerative joint disease. The examiner noted bilateral knee instability, stiffness, weakness, and repeated effusion. There was also swelling and tenderness. The Veteran also experienced weekly flare-ups of moderate severity that lasted for hours. He was unable to stand for more than a few minutes or walk more than a 1/4 mile, and his gait was abnormal. The examiner stated that the Veteran's disability had a mild effect on daily activities, to include chores, shopping, exercise, sports, and recreation. Based on the evidence of record, the Board finds that from October 20, 2004 to April 7, 2010, the Veteran's disabilities precluded him from all forms of employment. The Veteran's treating physician noted chronic tenderness in the foot. The Veteran stated that the pain in his legs and knees became so severe, that it interfered with his studying. The Board notes that in 2007, the Veteran was cleared to perform activities such as walking, light to moderate activities and light restrictive work. Additionally, the 2009 VA examiner noted bilateral knee instability, stiffness, weakness, and repeated effusion. The Veteran experienced swelling and tenderness. He also experienced weekly flare-ups of moderate severity that lasted for hours. He was unable to stand for more than a few minutes or walk more than a 1/4 mile, and his gait was abnormal. When considering the Veteran's employment history as well as the medical evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of TDIU. As such, the Board concludes that from October 20, 2004, to April 7, 2010, TDIU is warranted under 38 C.F.R. § 4.16(a). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.