Citation Nr: 21013366 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-18 449 DATE: March 9, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 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, 3.400, 4.16(a).  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1975 to February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine which, in part, continued previously assigned disability ratings for the Veteran’s service-connected right knee disability. This case was most recently before the Board in June 2020 at which time the Board, in part, adjudicated the Veteran’s claim for a higher rating for his right knee disability. The Board also took jurisdiction of the TDIU issue as part and parcel of the Veteran’s claim for a higher disability rating for his right knee disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded this issue for additional development. TDIU A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).   The Veteran has established service connection for psychiatric disability, rated 70 percent disabling; right knee disability, currently rated as 30 percent disabling; right foot disability, rated 20 percent disabling; low back disability, rated 10 percent disabling; right ankle disability, rated 10 percent disabling; left foot disability, rated 10 percent disabling; sciatica of the right lower extremity, rated 10 percent disabling; and scars, rated noncompensably disabling. The Veteran has had a combined disability rating of 70 percent since August 1, 2011. 38 C.F.R. § 4.25.  Therefore, he has met the threshold criteria for a TDIU throughout the appeal period beginning April 4, 2014 (the date of claim stemming from the August 2014 rating decision on appeal). 38 C.F.R. § 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities.   In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.   A review of the record shows that the Veteran was self-employed as an energy auditor and contractor for more than 20 years. See July 2011 VA feet examination. A November 2011 VA peripheral nerve examination shows that the Veteran had experienced trouble working as a contractor due to his service-connected sciatica of the right leg, was not currently working, and was going to school full time to gain different skills. The record also shows that the Veteran has undergone several right knee surgeries as early as June 2011 resulting in significant occupational impairment. The Veteran submitted a formal claim for a TDIU in December 2013, noting that he worked full-time in construction from 1990 to July 2010 but last worked in July 2010 due to his service-connected right knee disability. In connection with this claim, the Veteran was afforded a VA knee examination in February 2014. Significantly, it was noted that the Veteran had not re-started his construction business after being out of work for nearly two years and that a less labor intensive occupation would be necessary if the Veteran wished to continue working. By rating decision dated in March 2014, the RO denied a TDIU. The Veteran did not appeal this decision. The Veteran submitted a claim for an increased rating for his service-connected right knee disability in April 2014. The Veteran also submitted a claim for service connection for psychiatric disability in February 2015. In connection with these claims, the Veteran was afforded VA knee and psychiatric examinations in March 2015. During the March 2015 VA knee examination, the Veteran reported that he last worked in the winter and did limited carpentry/renovations. Significantly, the examiner opined that the Veteran’s right knee condition impacted his ability to work, specifically, the examiner noted that the Veteran could not perform heavy, prolonged physical labor due to his right knee disability but could perform intermittent physical work as well as sedentary work based on the limitations brought upon him due to his right knee disability. During the March 2015 VA psychiatric examination, the examiner found that the Veteran’s service-connected psychiatric disability resulted in various symptoms, to include: mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. More recently, a May 2015 VA treatment record shows that the Veteran had done a “few odd jobs for people” (i.e., installing a microwave for someone) but was not gainfully employed. An April 2017 VA treatment record shows that the Veteran was “not employed.” Also, an August 2019 VA knee examination report shows that Veteran’s knee pain prevents him from performing physical activities such standing for an hour or more and climbing ladders and that he was only able to perform “odd jobs.” Pursuant to the June 2020 Board remand, the Veteran was requested to submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information since December 2013 in September 2020 correspondence. Unfortunately, the Veteran did not respond to this request. Unemployability is a factual determination, not a medical one. The Board is tasked with, first, reviewing the medical evidence to glean the Veteran’s service-connected impairment, and second, determining as a legal matter whether that impairment is sufficient to render him unable to maintain substantially gainful employment.  Initially, while the Veteran appears to be performing occasional “odd jobs” like installing a microwave for someone, the Board finds that such work is not substantially gainful employment. Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). While the Veteran has failed to provide any specific information regarding how much money he is making performing occasional “odd jobs,” the Board will afford the Veteran reasonable doubt in assuming that his occasional “odd jobs” does not rise to the level of substantially gainful employment. Next, the Board will consider whether the Veteran is capable of substantially gainful employment given the limitations placed upon him as a result of his service-connected disabilities. As above, several VA examiners have opined that the Veteran’s service-connected right knee disability prohibits physical employment and the March 2015 VA psychiatric examiner found that the Veteran’s psychiatric disability resulted in mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. This suggests that both physical and sedentary employment is precluded. While not definitive, such findings support the Veteran’s assertion that his service-connected disabilities affect his ability to secure substantially gainful employment. Given the activities required by construction, to include prolonged standing and lifting, the Board finds that this Veteran’s disability picture is such that his service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Therefore, a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  The appeal is granted. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.