Citation Nr: 21068904 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 13-05 016 DATE: November 15, 2021 ORDER Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to engage and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from March 1969 to August 1973. In April 2021, the Board remanded the above issue for additional development. The case has since returned to the Board for appellate review. 1. Entitlement to a TDIU is denied. The Veteran contends that he is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. The Veteran contends that his inability to stand, sit, and squat for prolonged periods, in addition to his severe painful motion and weakness, render him unable to obtain gainful employment. See January 2019 Informal Hearing Presentation. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. In the instant case, the Veteran is in receipt of a 60 percent rating for status post right total knee arthroplasty; a 20 percent rating for limited extension of the right knee associated with status post right total knee arthroplasty; a 20 percent rating for right knee instability; a 10 percent rating for his scar in the right knee associated with status post right total knee arthroplasty; and noncompensable ratings for prostate cancer, erectile dysfunction, and residual scars all associated with prostate cancer, status post robotic laparoscopic prostatectomy. He has been in receipt of a 70 percent combined evaluation since February 28, 2012. As noted in the September 2020 rating decision, the Veteran's service-connected disabilities meet the schedular criteria for entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty level 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 income." In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Turning to the relevant evidence, as to education, the Veteran reported that he did not complete a bachelor's degree. See January 2019 Informal Hearing Presentation. As to work history, the Veteran reported working for a utility company since 1975 and stopped working in the 1990s. See June 2021 VA examination. Initially, the Veteran reported that he worked as a meter reader and did a lot of prolonged walking, which aggravated his knee pain. The Veteran reported that he worked in this position until 1993. See January 2019 Informal Hearing Presentation. However, the Veteran also reported that, several years before retiring, he was a customer service representative which he described as more a desk-type of occupation. See June 2021 VA examination. In the March 2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked as a customer service representative in 1993. The Veteran also reported that he worked as a part-time cook until 2002. See January 2019 Informal Hearing Presentation. The Veteran noted that he has been unemployed since 2002 due to his difficulty with standing for prolonged periods. Id. Turning to the relevant medical evidence of record, as to the Veteran's prostate cancer residuals, in the September 2017 VA examination for prostate cancer, the examiner noted a 2016 diagnosis of prostate cancer and a 2017 diagnosis of erectile dysfunction. The examiner concluded that the Veteran's prostate cancer or erectile dysfunction did not impact his ability to work. As to the Veteran's right knee disabilities, the Board notes that VA examiners provided opinions on the Veteran's ability to work given his right knee disabilities in March 2018 and June 2021. In the March 2018 VA knee examination, the examiner noted a diagnosis of status post right knee arthroplasty. The Veteran reported that his right knee condition has worsened. He reported that he cannot tolerate cold weather, and his knee intermittently swells. He also experiences stiffness in his right knee after prolonged sitting. The VA examiner concluded that his right knee condition impacted his ability to work, specifying that he cannot climb, sit for prolonged periods, or go up and down stairs as he will have cramping and pain. In the June 2021 VA knee examination, the examiner noted a diagnosis of right knee total arthroplasty. The Veteran reported that his right knee pain has worsened since his last VA examination in March 2018. He reported that the pain is aggravated by prolonged standing and walking. His knee gives way when he walks on uneven ground, and he reported that his knee occasionally swells, particularly when the seasons change. He does not currently wear a brace, cane, or take injections due to his right knee pain. The examiner concluded that the Veteran's right knee condition impacts his ability to work, noting that he has difficulty with prolonged standing/walking, bending/squatting, and high impact activities. Given his current disability following his right total knee arthroplasty, the examiner further noted that he would have to have difficulty with heavy lifting/carrying, bending/squatting, prolonged standing/walking, or high impact activities such as running/jumping. The examiner noted that the Veteran is able to do a desk-type occupation, such as answering phones, if he was given reasonable accommodations for rest breaks. Given the probative evidence, at the outset, the evidence shows that the Veteran's prostate cancer residuals do not render him unable to maintain substantially gainful employment. As to his prostate cancer residuals, the Board finds the September 2017 VA opinion most probative. In September 2017, the VA examiner concluded that the Veteran's prostate cancer did not impact his ability to work. As to whether the Veteran's right knee disabilities impact the Veteran's ability to maintain substantially gainful employment, the Board finds that the Veteran's service-connected right knee disabilities inhibited his ability to maintain substantially gainful employment in a physical work environment. The record supports that the Veteran's right knee condition make physical work highly difficult as he has issues with physical activities. In June 2021, the VA examiner specifically noted that he would have difficulty with heavy lifting/carrying, bending/squatting, prolonged standing/walking, or high impact activities such as running/jumping. As such, the Board finds that the Veteran could not perform physical tasks commensurate with his work history on a basis that would allow him to maintain substantially gainful employment. With respect to sedentary work, the Veteran believes that he does not have the training, education, or experience to engage in substantially gainful employment that could accommodate his service-connected disabilities. However, the Board notes that the Veteran has a history of working on a sedentary desk-type position as a customer service representative. As to whether the Veteran can perform sedentary work, the Board finds the June 2021 opinion most probative. The Board acknowledges that the March 2018 VA examiner noted that the Veteran has difficulty sitting for prolonged periods. However, the March 2018 VA examiner did not discuss how the limitations of his right knee disability, including his difficulty sitting for prolonged periods, would have on his ability to work given his work history. On the other hand, the June 2021 VA examiner noted that the Veteran would be able to work in a desk-type occupation if given reasonable accommodations for rest breaks. As the June 2021 VA examiner discussed the Veteran's ability to perform sedentary tasks as it relates to his work history, the Board finds the June 2021 VA examiner's opinion most probative. As the Veteran has a history of working in a sedentary position as a customer service representative, the Board finds that, despite the physical limitations associated with his right knee disability, the Veteran is able to work in a sedentary work environment commensurate with his work experience, such as his previous job as a customer service representative. Given the evidence, the Board finds that the Veteran's overall disability picture does not his impair his ability to obtain and follow substantially gainful employment, as he is still able to perform sedentary work commensurate with his work history. Accordingly, the Board finds that the preponderance of the evidence does not support the Veteran's claim for entitlement to a TDIU due to his service-connected disabilities. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.