Citation Nr: 21010506 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 10-24 648 DATE: February 25, 2021 ORDER A total disability rating based on individual unemployability (TDIU) from April 19, 2009 to March 28, 2016 is granted. FINDING OF FACT The Veteran met the schedular criteria for a TDIU from April 19, 2009, and his service-connected disabilities precluded him from engaging in gainful employment. CONCLUSION OF LAW The criteria for a TDIU from April 19, 2009 to March 28, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. army from October 2000 to March 2001. He passed away in April 2017. His wife has been substituted in his place as the appellant for the purpose of this appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision. It was previously remanded by the Board in December 2017 and May 2020. TDIU from April 19, 2009 to March 28, 2016 A TDIU may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because 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). For the purposes of TDIU, disabilities of a common etiology will be considered a single disability. Id. The Board previously remanded the issue because it found that the Veteran did not meet the schedular criteria for a TDIU during the above-listed period, and it referred the matter to the Director of Compensation service for extraschedular consideration. However, during this period, the Veteran was service-connected for a right knee medial meniscus tear (30 percent), depressive disorder (30 percent), and hypertension (10 percent). From September 16, 2009, he was also service-connected for a left knee strain (10 percent). His combined rating was 60 percent. Significantly, his depressive disorder, hypertension, and left knee strain were all determined to be associated with the right knee meniscal tear, and therefore all his service-connected disabilities from this period had a common etiology. The combined 60 percent rating, viewed as a single disability due to this common etiology, means the Veteran met the schedular criteria from April 19, 2009, through March 28, 2016. The Board regrets the previous error. As stated in the May 2020 remand, the Veteran reported in November 2005 that he was unable to work due to pain and being heavily medicated, in part, for his knee. In December 2007, he stated he was unable to stand for prolonged periods of time and experienced drowsiness, dizziness and loss of memory because of his medication. Additionally, he reported that his medications interfered with his ability to attend school and caused him to withdraw. The Veteran’s spouse submitted a December 2007 lay statement in which she related the Veteran often forgot tasks despite repeated instructions, and had difficulty concentrating due to bilateral knee pain. She also indicated the Veteran had attempted to obtain employment but was rejected because of the effects of his medication and inability to stand for extended periods of time. Medical records show the Veteran had been heavily medicated with painkillers since at least January 2005, when a VA examiner noted he took six Vicodin per day in addition to a low dose anti-depressant and anticonvulsant to relieve pain. An April 2008 VA examiner noted the Veteran’s medication was possibly causing dizziness as well as complications leading to hypertension. During this examination, the Veteran reported that he was unemployed and had worked as a fuel inspector for four months after separation but had stopped due to drowsiness caused by his medications. In an April 2008 VA psychological examination, the examiner noted mildly impaired recent memory. The Veteran reported he had been unemployed for two to five years and was last employed working on refrigeration railroad cars for the Department of Transportation but stated the reason for his unemployment was leg pain. The examiner opined that any functional impairment with work or school was due to the Veteran’s physical disability. In February 2011, the Veteran was afforded a VA examination of his knees. The examiner noted the Veteran was unemployed, a student three-quarters of the time, and that his knee conditions caused severe interference with activities like shopping and chores. She stated the Veteran’s experienced side effects from his medication, which included Vicodin. However, November 2007, April 2010 and September 2010 VA examiners all noted no side effects from the Veteran’s current course of medication, which included Vicodin. The Board notes that, despite his service-connected disabilities, the Veteran was still able to complete associate degrees in design technology and computer drafting, and a bachelor’s degree in project management, although he had to withdraw temporarily due to dizziness and drowsiness. After a review of the evidence, the Board finds that the Veteran’s depression and bilateral knee conditions affected his life as a full-time student and likely prevented him from obtaining employment commensurate with his work experience. The record indicates the Veteran has been unemployed since at least January 2005. Additionally, as stated in the May 2020 remand, it appears his physical limitations, depression and medications prevented him from having the physical and mental faculties (short-term memory, ability to walk and stand for extended periods of time as well as stay awake) required to perform the activities required by an occupation similar to being a fuel inspector or working on refrigeration cars. These limitations also likely precluded him from obtaining or maintaining gainful employment in occupations consistent with his associate and bachelor’s degrees, as evidenced by his temporary withdrawal from school. Cf. 38 C.F.R. § 4.10 (a person may be too disabled to engage in employment although he is up and about and fairly comfortable at home or upon limited activity). Therefore, the overall weight of the evidence supports the award of a TDIU. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.