Citation Nr: 21007579 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-27 581A DATE: February 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT After resolving reasonable doubt, the Veteran’s service-connected disabilities likely preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran and his spouse testified at a videoconference hearing. The transcript of the hearing is of record. In November 2018, September 2019 and January 2021 the Board remanded the Veteran’s claim. All requested development has been completed and the Veteran’s claims folder has returned to the Board for further appellate consideration. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). 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 education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s service connected disabilities are the following: right knee limited extension associated with osteoarthritis of the right ankle, rated 30 percent disabling; osteoarthritis of the right ankle, rated 20 percent disabling; ostearthritis of the left ankle, rated 20 percent disabling; right shoulder associated with arthritis of the right knee limited flexion, rated 20 percent disabling; right knee instability associated with osteoarthritis of the right ankle, rated 20 percent disabling; laxity of the right ankle, rated 10 percent disabling; laxity of the left ankle, rated 10 percent disabling; and arthritis of the left knee associated with osteoarthritis of the left ankle, rated 10 percent disabling. With consideration of the bilateral factor pursuant to 38 C.F.R. § 4.16(a), the Veteran’s combined rating is 90 percent. He therefore satisfies the schedular requirement for consideration of TDIU. The Veteran is 75 years old. He reported on his claim for TDIU that he last worked in 2004 as a truck driver. He also reported on his claim for TDIU that his highest level of education was completion of one year of college, although during the May 2018 Board hearing he testified that he completed two years of college. He contends that his service-connected disabilities preclude him from obtaining substantial gainful employment. A review of the medical evidence and lay evidence indicates that the Veteran’s service-connected disabilities render him unable to obtain and retain substantially gainful employment, in particular with consideration of his level of education and past employment which involved long periods of sitting as well as frequent climbing. In this regard, the Veteran was provided VA examinations for his service-connected knee disabilities in April 2015 and October 2017. Both examination reports indicate that the Veteran’s knee disabilities significantly affect his employability in that he is unable to bend over, walk up and down stairs, and squat and he cannot stand or walk for form than 15 minutes. Moreover, VA examinations for the Veteran’s service-connected ankle disabilities dated March 2015 and March 2017 similarly indicate that these disabilities cause the Veteran to be unable to squat and he cannot stand or walk for long periods. Also, regarding the Veteran’s service-connected right shoulder disability, a June 2019 VA examination report documents his need to limit overhead activities due to the right shoulder pain. Additionally, the Board notes a private opinion dated April 2017 from J.S., MS, CRC, CCM, LPC who opined after interviewing the Veteran and review of the Veteran’s medical history as well as the Veteran’s educational history that the Veteran has been unable to perform any substantially gainful employment within the general labor market since at least 2004 due to the severity of the service-connected bilateral ankle disabilities. Finally, the Board notes the testimony of the Veteran and his wife at the May 2018 Board hearing in which they testified that the Veteran left his last job as a truck driver due to the pain associated with his service-connected knee and ankle disabilities. The Veteran also testified as to the need to elevate his legs to alleviate pain. He also uses a cane for ambulation due to the knee and ankle disabilities as well as from the pain medication he takes which makes him dizzy. He testified that he could not stand for more than four minutes and could not sit for more than 10 minutes before his braces caused pain. He also reported that he could not drive for more than five or ten miles. In sum, the service-connected orthopedic disabilities significantly limit the Veteran’s ability to walk, stand, sit and lift weight. In light of the foregoing, the Board finds that the Veteran’s physical limitations from his service-connected disabilities, in particular his orthopedic disabilities, likely render him unable to obtain and retain substantial and gainful employment. Accordingly, the Board concludes that entitlement to a TDIU is warranted and the Veteran’s claim is therefore granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.