Citation Nr: 21012729 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-40 792 DATE: March 5, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 25, 2019 is denied. Effective September 25, 2019 entitlement to TDIU is granted. FINDINGS OF FACT 1. Prior to September 25, 2019, the Veteran was not precluded from securing or following a substantially gainful occupation solely due to his service-connected disabilities. 2. From September 25, 2019, the Veteran met the schedular criteria for TDIU and he was precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU prior to September 25, 2019 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. From September 25, 2019 the criteria for entitlement to TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to February 1977. 1. Entitlement to TDIU prior to September 25, 2019. The Veteran’s claim for TDIU was received in October 2013. The Veteran reported on his claim form that he last worked as a laborer on a family owned farm. He noted that he had not worked since 2003, that he had a high school education, and that he had no other education and training after high school. In November 2020 the Veteran submitted an additional VA Form 21-8940 in which he stated that he worked as a custodian for a few months in 1980. At his April 2017 hearing the Veteran asserted that he was unable to work due to his right knee disability. A total rating based on unemployability may be granted if a veteran is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be 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 follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Factors to be considered are a Veteran’s education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). From October 1, 2013 to September 24, 2018 the Veteran had a combined rating of 60 percent due to his service-connected disabilities. He had a 20 percent rating for osteoarthritis of the right knee; a 20 percent rating for mild degenerative disc disease of the lumbar spine secondary to right knee disability; a 20 percent rating for right lower extremity radiculopathy; a 10 percent rating for right knee meniscectomy; a 10 percent rating for tinnitus; a zero percent rating for bilateral hearing loss; and a zero percent rating for scar of the right knee. Even considering all of the Veteran’s right knee and lumbar spine disabilities as one disability, the Veteran did not meet the schedular criteria for TDIU prior to September 24, 2018. His right knee and lumbar spine disabilities combined to make a 50 percent total rating. They did not result in a combined total rating of 60 percent of more as required to meet the schedular criteria. The Veteran’s tinnitus, hearing loss and scar disabilities are not considered to be resulting from common etiology or from the same accident as the right knee and thus cannot be considered to be included as part of the right knee and lumbar spine “single disability” as defined by 38 C.F.R. § 4.16(a)(2). Not only did the Veteran not meet the schedular criteria for TDIU prior to September 24, 2018, but he was also not shown to be unemployable due to service-connected disability. Prior to September 24, 2018 his only compensable service-connected disabilities were his right knee disability, his mild degenerative disc disease of the lumbar spine, and tinnitus. Furthermore, the Board notes that a June 2017 VA treatment record states that the Veteran reported that he still did heavy work. Accordingly, an award of TDIU is not warranted prior to September 24, 2018. The Veteran did meet the schedular criteria for TDIU from September 24, 2018 to September 25, 2019. He had a total combined rating of 70 percent due to his service-connected disabilities. This increase in the total combined rating from 60 to 70 percent resulted from the assigment of an increased rating of 20 percent for right knee meniscectomy, and the award of service connection and a 10 percent rating for a depressive disorder. As of September 24, 2018, the Veteran’s right knee and lumbar spine disabilities are considered to be of common etiology and resulted, as of that date, in a combined rating of 60 percent. Thus, from September 24, 2018 to September 25, 2019 the Veteran is considered to have had a single disability rated at 60 percent or more as defined by 38 C.F.R. § 4.16(a)(2). However, even though the Veteran met the schedular criteria for TDIU from September 24, 2018 to September 25, 2019, the Board finds that he was not unemployable due to his service-connected disabilities during that time. On VA psychiatric examination in September 2018 the VA examiner opined that the Veteran had mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. The examiner reported that the Veteran was not currently on any psychiatric medications. Thus, the examination report indicated that the Veteran’s service-connected depression was mild in nature. Furthermore, even though the Veteran had service-connected right knee and lumbar spine disability, he reported in September 2018 that he had recently repaired his roof. This evidence, and the other evidence dated from September 24, 2018 to September 25, 2019, indicates that the Veteran was capable of performing the physical and mental acts required by employment despite having significant service-connected disability. Accordingly, the Veteran was not entitled to a TDIU prior to September 25, 2019. 1. Entitlement to TDIU from September 25, 2019. As explained below the Board finds that the Veteran is entitled to the award of TDIU since September 25, 2019. Not only did he meet the schedular criteria for TDIU, but he was also shown to be unemployable due to his service-connected disabilities as of this date. From September 25, 2019 the Veteran had a total combined rating of 80 percent due to his service-connected disabilities. This increase in the total combined rating from 70 to 80 percent resulted from the award of service connection and a 10 percent rating for left knee arthritis, and from the award of service connection and a 10 percent rating for left knee meniscectomy. The record indicates that from September 25, 2019 that the Veteran was unable to engage in physical employment due to his service-connected lumbar spine and bilateral knee disabilities. On VA examination in October 2019 the examiner stated that the Veteran was not suited for physically demanding work of any kind. She noted that the Veteran was unable to walk or stand for longer than five minutes, that he was unable to run, unable to kneel, unable to lift heavy weight and unable to repetitively bend at the knee or ascend/descend stairs. In addition to being unable to engage in physical employment, the Board finds that since September 25, 2019 the Veteran has also been unable to engage in sedentary employment. Although the Veteran’s depressive disorder was noted to be mild in nature it does impact his ability to engage in sedentary unemployment, especially in times of stress. Furthermore, taking into consideration that the Veteran’s only significant work experience was working on his father’s farm for 30 years until 2003, the Board finds that overall, considering the Veteran’s education, employment history, and vocational attainment, the Veteran has been unemployable due to service-connected disability from September 25, 2019. Accordingly, the award of TDIU from September 25, 2019 is warranted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.