Citation Nr: 21067599 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 20-20 724 DATE: November 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted on and after September 5, 2017. FINDING OF FACT The Veteran's service-connected disabilities have met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of these disabilities have prevented him from performing gainful employment for which his education and occupational experience would otherwise qualify him since September 5, 2017. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1956 to May 1958, in June 1963, in September 1963, and from March 1983 to September 1983. The Veteran testified before the undersigned Veterans Law Judge during an October 2021 hearing. This matter is on appeal from a November 2017 rating decision. 1. TDIU The Veteran contends that his service-connected disabilities render him unemployable and that he last worked full-time on June 1, 1996. He reports that he most recently worked full-time as a janitor and has also been a steelworker. VA received the Veteran's claim for a TDIU on September 5, 2017. VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran's combined disability rating on and after September 5, 2017 is 80 percent: his bilateral sensorineural hearing loss is rated 40 percent disabling, his cold injury syndrome of the left foot is rated 30 percent disabling, his cold injury syndrome of the right foot is rated 30 percent disabling, and his tinnitus is rated 10 percent disabling. The criteria for consideration of a schedular TDIU are therefore met on and after September 5, 2017. The Veteran was also afforded a VA examination for cold injury residuals in September 2017. The Veteran reported daily severe foot pain. The clinician found that the Veteran's cold injury residuals would interfere with prolonged standing and walking. In his June 2018 Notice of Disagreement (NOD), the Veteran reported continuous pain in his feet and that he left his last job because he could no longer stand the pain of being on his feet all the time. During the October 2021 hearing, the Veteran testified that he had only done odd jobs since his 1996 retirement. The Veteran credibly reports constant pain in his feet and a VA clinician found that his service-connected cold injury residuals in his feet would interfere with prolonged standing and walking. His only reported work experience is as a steelworker and janitor, two fields that require prolonged standing and walking. The evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities have rendered him unemployable under the applicable regulations since September 5, 2017. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted on and after September 5, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.