Citation Nr: 21070109 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-07 449 DATE: November 23, 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 cervical spine degenerative joint disease rated as 20 percent disabling; right upper extremity radiculopathy rated as 40 percent disabling; left upper extremity radiculopathy rated as 30 percent disabling; right shoulder degenerative joint disease rated as 20 percent disabling; right knee patellofemoral syndrome rated as 10 percent disabling; left knee patellofemoral syndrome rated as 10 percent disabling; right ankle sprain rated as 10 percent disabling; left ankle fracture residuals and degenerative arthritis rated as 10 percent disabling; bilateral tinnitus rated as 10 percent disabling; and left hearing loss, tympanic membrane perforation residuals, hemorrhoids, erectile dysfunction, and right chest and head shell fragment wound residuals rated as noncompensable. The Veteran has a combined service-connected disability rating of 80 percent. 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 a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1967 to April 1970; from September 1978 to December 1994; and from June 2003 to June 2009. He served in the Republic of Vietnam, Afghanistan, and Iraq and was awarded the Combat Action Ribbon and the Purple Heart Medal. In May 2019, the Board of Veterans' Appeals (Board) denied entitlement to a TDIU. The Veteran subsequently appealed to the Court of Appeals for Veteran's Claims (Court). In April 2020, the Court granted the Parties' Joint Motion for Partial Remand; vacated that portion of the May 2019 Board decision which denied entitlement to a TDIU; and remanded the Veteran's appeal to the Board for additional action consistent with the Joint Motion for Partial Remand. TDIU The Veteran contends that his service-connected disabilities have prevented him from securing and following any form of substantially gainful employment. 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 render 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 to follow a substantially gainful occupation as a result of service-connected disabilities. 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. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentage referred to in this paragraph for the service-connected disability are met and in the judgment of the rating agency such service-connected disabilities make the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection has been established for cervical spine degenerative joint disease rated as 20 percent disabling; right upper extremity radiculopathy rated as 40 percent disabling; left upper extremity radiculopathy rated as 30 percent disabling; right shoulder degenerative joint disease rated as 20 percent disabling; right knee patellofemoral syndrome rated as 10 percent disabling; left knee patellofemoral syndrome rated as 10 percent disabling; right ankle sprain rated as 10 percent disabling; left ankle fracture residuals and degenerative arthritis rated as 10 percent disabling; bilateral tinnitus rated as 10 percent disabling; and left hearing loss, tympanic membrane perforation residuals, hemorrhoids, erectile dysfunction, and right chest and head shell fragment wound residuals rated as noncompensable. The Veteran has a combined service-connected disability rating of 80 percent. Therefore, the Veteran meets the schedular criteria for consideration for a TDIU. 38 C.F.R. § 4.16(a)(2). In his December 2015 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran advanced that he had last worked on a full time basis in January 2014 as a helicopter pilot. He stated that the service connected disabilities had rendered him unemployable since January 2014. A July 2016 vocational assessment from J. Salek, M.S., conveys that she had reviewed the claims file. She commented that "given what appears to be the permanency of [the Veteran's] chronic service-connected cervical spine with peripheral neuropathy into the bilateral upper extremities, right shoulder bilateral knee, and bilateral ankle conditions with persistent pain symptoms and functional limitations resultant of these conditions as outlined within the C&P examination of February 2016 and the FCE of May 2016, it is my opinion that he has not been able to perform any type of substantially gainful occupation within the general labor market on a consistently expected basis since January 2014." Ms. Salek concluded that "it is my opinion that he is considered to be entitled to a 100% rating for TDIY as of January 2014." A November 2020 VA evaluation states that: "as previously stated, the Veteran has limited ability to stand, walk, kneel, crawl, squat and perform repetitive bending due to his knees and ankle condition;" "he has limited ability to work overhead and limited ability to turn his head side to side;" "he has limited lifting, pushing/pulling, and overhead work with his right arm;" "the Veteran is noted to have limited fine motor control related to the upper extremity radiculopathy;" and "due to these limitations, the Veteran would be limited on his ability to perform even sedentary work due to the limited movement of his head and neck, limited lifting, and limited ability to perform prolonged standing and walking. The Veteran meets the schedular criteria for consideration for a TDIU. He had reported that he had not worked since January 2014. Ms. Salek and a VA examiner have concluded that the service connected disabilities render the Veteran unable to perform even sedentary employment. As the service-connected disabilities alone render the Veteran to be unable to secure or follow substantially gainful employment, entitlement to a TDIU is granted. 38 C.F.R. § 4.16. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.