Citation Nr: 21013144 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 12-33 707A DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to November 1976 in the United States Marine Corps, to include active duty service in the Vietnam Era. The Board recently remanded the claim in September 2020. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU is denied. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her 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 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In this case, the Veteran is service-connected for right knee internal derangement rated 10 percent until February 29, 2016. That rating was discontinued, and the Veteran was service-connected for right knee total arthoplasty temporarily rated 100 percent from February 29, 2016 to April 1, 2017 and 60 percent from April 1, 2017. The Veteran is also service-connected for a right leg scar rated 10 percent from January 7, 2016. His combined rating is 60 percent, effective April 1, 2017. Therefore, the Veteran meets the schedular criteria for consideration of TDIU from that date.38 C.F.R. § 4.16 (b). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence does not show that the Veteran’s service-connected disability renders him unable to secure or follow a substantially gainful occupation. The Board notes that the Veteran has been provided with a TDIU application form (VA Form 21-8940) multiple times during the course of the appeal, most recently in September 2020. The application has never been returned. Therefore, the Board must rely on the evidence of record to determine whether the Veteran is entitled to TDIU. The medical evidence indicates that the only service-connected disability with any functional impact on the Veteran’s ability to work is his right knee disability. Specifically, in the September 2017 VA examination the Veteran’s right knee disability was noted to prevent standing and walking for any prolonged period of time. Clearly this presents an impairment to the Veteran’s capability for physical based occupation. However, the evidence does not demonstrate any similar impairment to sedentary employment and without any information regarding the Veteran’s employment or education history the Board cannot conclude that the Veteran is not qualified to obtain such employment. Finally, the Board notes that the Veteran’s representative argued in an Informal Hearing Presentation that the Veteran has not contended that he is entitled to a TDIU and no indication that he seeks such a claim. The representative also pointed out that the Social Security Administration disability compensation is based on disabilities other than his service-connected right knee and scar. In summary, the competent and credible evidence demonstrates that the Veteran is not entitled to a TDIU. 38 U.S.C § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.