Citation Nr: 21007214 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-29 433 DATE: February 9, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not meet the schedular criteria for a TDIU and he is not unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1958 to December 1960 in the U.S. Navy. The issue of entitlement to a TDIU was raised in a December 2019 Board decision as part and parcel to his prior claims for increased ratings for his service-connected bilateral knee disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that separate ratings were granted for left and right knee instability in the December 2019 Board decision, however the decision has not been implemented. Accordingly, it is referred to the agency of original jurisdiction (AOJ) for appropriate action. This matter was remanded by the Board in December 2019 for additional development. In September 2020, the AOJ sent the Veteran a letter requesting that he return a completed VA Form-21-8940. Additionally, the claims for service connection for a low back disability and gastroesophageal reflux disease (GERD) have been adjudicated. Accordingly, there has been substantial compliance with all remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for residuals of a left knee injury with arthritis (10 percent from November 19, 2014), right knee degenerative arthritis (10 percent from November 19, 2014), left knee instability (10 percent from June 27, 2019), right knee instability (10 percent from June 27, 2019), tinnitus (10 percent from November 19, 2014), bilateral hearing loss (10 percent from July 5, 2017), and gastroesophageal reflux disease (GERD) (10 percent from October 16, 2019). The Veteran’s combined disability rating has been 30 percent from November 19, 2014, 40 percent from July 5, 2017, and 50 percent from June 27, 2019. As the Veteran has not had at a single service-connected disability rated at 60 percent or greater, or a combined evaluation of 70 percent or greater, the Board finds that the schedular requirements for a TDIU have not been met at any time during the appeal period. The Board notes that the Veteran did not respond to VA’s September 2020 request for additional information related to his claim for a TDIU and did not submit any additional evidence. Overall, the available evidence demonstrates that the Veteran is not precluded from securing or following a substantially gainful occupation due to service-connected disabilities. The appeal is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, Associate 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.