Citation Nr: 21012620 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-02 286 DATE: March 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1992 to September 1993. In October 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran’s claim for entitlement to a TDIU was recognized by the Board of Veterans’ Appeals (Board) in a September 2020 decision as part of the Veteran’s claim for an increased initial disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU claim for additional development, which has been completed. This is the only issue on appeal. The Veteran contends, in substance, that his service-connected disabilities prevent him from following substantially gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). Here, the Veteran is currently service connected for the following: • Mechanical low back pain, rated as 40 percent disabling; • Lateral meniscus tear, left knee status post repair, degenerative arthritis, rated as 20 percent disabling; • Right knee strain with ACL reconstruction and tibialis anterior allograft, Arthrex tightrope technique status post arthroscopy with meniscectomy (ACE), degenerative arthritis associated with lateral meniscus tear, left knee status post repair, degenerative arthritis, rated as 20 percent disabling; • Right lower extremity radiculopathy, sciatic nerve associated with mechanical low back pain, rated as 20 percent disabling; • Left lower extremity radiculopathy, sciatic nerve associated with mechanical low back pain, rated as 20 percent disabling; • Limited extension of the right knee strain status post arthroscopic meniscectomy; patellofemoral arthrosis; and ACL tear, status post reconstruction surgery associated with right knee strain with ACL reconstruction and tibialis anterior allograft, Arthrex tightrope technique status post arthroscopy with meniscectomy (ACE), degenerative arthritis, rated as 10 percent disabling; • Limited extension, left knee status post meniscus repair associated with lateral meniscus tear, left knee status post repair, degenerative arthritis, rated as 10 percent disabling; • Limited flexion, left knee status post meniscus repair, degenerative arthritis associated with lateral meniscus tear, left knee status post repair, degenerative arthritis, rated as 10 percent disabling; • Scar, left knee status post meniscus repair associated with lateral meniscus tear, left knee status post repair, degenerative arthritis, rated as 0 percent disabling; • Scar, right knee status post ACL reconstruction associated with right knee strain with ACL reconstruction and tibialis anterior allograft, Arthrex tightrope technique status post arthroscopy with meniscectomy (ACE), degenerative arthritis, rated as 0 percent disabling. The Veteran’s total combined disability rating is 90 percent, with back and knee conditions affecting a single body system (musculoskeletal conditions) combining to a 60 percent disability evaluation. Therefore, the Veteran meets the schedular requirement for TDIU under 38 C.F.R. § 4.16 (a). For the reasons explained below, the Board finds the Veteran’s service-connected disabilities render him unemployable. The Veteran contends, in substance, he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The record shows the Veteran is currently employed in electronic assembly. See June 2019 VA Examination. During a June 2019 VA examination, the examiner opined that the Veteran’s knee disabilities impact his ability to work. Id. The Veteran has had to pass up job opportunities at work because of his knee disabilities and needs significant work accommodations. See id. As for the Veteran’s back disability, the Veteran is able to work an 8-hour shift, but needs to be sitting essentially 100 percent of the time. See April 2017 Grand Itasca Clinic Letter. The problems the Veteran has service-connected significantly impair his ability to work in electronics assembly. VA regulations provide that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (Continued on the next page)   Considering the impact of his significant orthopedic disabilities and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.