Citation Nr: 21014422 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 13-15 869 DATE: March 12, 2021 ORDER Entitlement to a total disability rating based on unemployability (TDIU) due to service connected disabilities as of May 1, 2011, but not earlier, is granted. FINDINGS OF FACT 1. Prior to May 1, 2011, the Veteran did not meet the schedular requirements for consideration of the assignment of TDIU and the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. 2. As of May 1, 2011, the evidence is at least in equipoise regarding whether the service-connected disabilities have precluded the Veteran from securing or following substantially gainful employment. CONCLUSION OF LAW As of May 1, 2011, but not earlier, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to November 1974. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The December 2009 decision denied service connection for left and right hip osteoarthritis. A May 2012 rating decision denied entitlement to TDIU. In July 2012 the Veteran filed a NOD as to the issue of TDIU. In May 2013 the Veteran filed a substantive appeal, requesting a Board hearing in on the VA Form 9. In April 2015 correspondence the Veteran explicitly withdrew the hearing request. Therefore, the Board finds the hearing request withdrawn. 38 C.F.R. § 20.704(e). In August 2015 the Board remanded the issue of entitlement to service connection for a left and right hip disability and the issue of entitlement to TDIU. In a May 2017 the Board denied service connection for a left and right hip disability and remanded the issue of entitlement to TDIU. The Veteran appealed the Board’s decision with respect to the bilateral hip disability to the United States Court of Appeals for Veterans Claims. In a November 2018 Memorandum Decision, the Court set aside that part of the Board’s May 2017 decision that denied service connection for a bilateral hip disability and remanded the matter for further proceedings. In December 2017, the Veteran’s attorney filed a letter withdrawing as the Veteran’s representative. This letter was accepted as a valid withdrawal and the Veteran is currently considered unrepresented for this appeal. In June 2019 the Board remanded the issue of entitlement to service connection for a bilateral hip disability for further development, consistent with the Court’s order. In October 2019 the Board remanded the issue of entitlement to a TDIU to obtain VA treatment records and to readjudicate the issue of entitlement to a TDIU based on the entirety of the evidence. The Board found that the TDIU claim was inextricably intertwined with the claim for service connection for a bilateral hip disability. Harris v. Derwinski, 1 Vet. App. 180 (1991). In October 2020 the Board remanded the claim for TDIU to implement a grant of service connection for a bilateral hip disability, and readjudicate the issue of entitlement to TDIU. The grant of service connection for the bilateral hip disability represents a full grant of the benefits sought. Therefore, the issues of entitlement to service connection for bilateral hip disabilities are no longer on appeal. In November 2020, the RO issued a rating decision establishing service connection for left hip osteoarthritis, rated 50 percent; right hip osteoarthritis, rated 30 percent, left knee chondrocalcinosis, rated 10 percent; left lower extremity surgical scars, rated 0 percent; and right lower extremity surgical scar rated 0 percent. The RO adjudicated the issue of entitlement to a TDIU and returned the claim to the Board. Entitlement to TDIU In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability occurred, if an application is received within one year from that date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400 (o); Harper v. Brown, 10 Vet. App. 125 (1997). Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability rated 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is rated 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of determining whether there is one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching 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 (1993). 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 age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran asserts that the service-connected disabilities make him unable to secure and follow any form of substantially gainful employment. Service connection has been established for left hip osteoarthritis with total replacement with a 20 percent rating from February 18, 2009, increased to a 100 percent temporary total rating from March 23, 2010, until May 1, 2011, and then a 50 percent as of May 1, 2011. He has also established service connection for right hip osteoarthritis with total replacement rated 10 percent from February 18, 2009, increased to a 100 percent temporary total rating from January 24, 2017, to March 1, 2018, then a 30 percent as of March 1, 2018; left hip thigh impairment associated with left hip osteoarthritis with total replacement rated 10 percent from February 18, 2009, to March 22, 2010; left knee chondrocalcinosis with degenerative arthritis rated 10 percent from June 15, 2011; left hip limitation of extension associated with left hip osteoarthritis with total replacement rated 0 percent; right hip limitation of flexion associated with right hip osteoarthritis with total replacement rated 0 percent; right hip thigh impairment associated with right hip osteoarthritis with total replacement rated 0 percent; left lower extremity surgical scars associated with left chondrocalcinosis with degenerative arthritis rated 0 percent; and right lower extremity surgical scar associated with right osteoarthritis with total replacement rated 0 percent. Because the temporary total ratings are the maximum ratings assignable, increased ratings for those periods are not for consideration. Notably, the service-connected disabilities of one both lower extremities resulted from a common etiology. Thus, the Veteran met the schedular criteria for consideration of the assignment of TDIU under 38 C.F.R. § 4.16(a) of having a single disability from a single etiology rated 60 percent as of May 1, 2011. According to the Social Security Administration (SSA), the Veteran became too disabled to work as of January 15, 2009. The SSA determined that the Veteran was disabled due to a primary diagnosis of bilateral hip degenerative joint disease and a secondary diagnosis of severe bilateral hip osteoarthritis. The Veteran submitted VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability in June 2011. It was received on June 15, 2011. The Veteran stated that he last worked full time as a builder leadman. That work began in July 2005 until he became too disabled to work on October 20, 2008. An additional work attempt in construction lasted approximately two months, ending in February or March 2011. The Veteran has a high school education with no additional training or education. The report of an October 2015 hip examination conducted for VA indicates that the examiner noted that the Veteran stopped working because of his hips in 2008. The report describes difficulty with prolonged walking and squatting due to pain. The doctor concluded that the Veteran’s “hips do not otherwise restrict from light and sedentary occupations." The Board has considered multiple lay statements from the Veteran regarding the severity of hip symptoms throughout the period of appeal. The Veteran is competent to report symptoms, such as pain, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). After reviewing the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's service-connected disabilities precluded substantially gainful employment consistent with his education and occupational training. The medical evidence indicates that the Veteran's hip disabilities prevent him from performing employment tasks involving prolonged standing or walking. While the Veteran appears capable of performing less physically demanding employment tasks, his education and occupational training do not indicate that he has transferable skills needed for sedentary employment given his high school education and prior history of physically demanding work. Resolving all reasonable doubt in favor of the Veteran, the Board finds that due to the service-connected disabilities the Veteran is unable to secure and follow a substantially gainful occupation consistent with his education and work history. Accordingly, entitlement to TDIU is warranted as of May 1, 2011. However, the Board finds that the evidence prior to May 1, 2011, does not establish the that service-connected hip disabilities precluded all employment. Despite the findings of the Social Security Administration, the evidence of record shows a lower level impairment prior to May 1, 2011, that was assigned lower service-connected disability ratings and did not preclude employment. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the service connected disabilities made the Veteran unable to secure or follow a substantially gainful occupation as of May 1, 2011, but not earlier. Therefore, the claim for TDIU as of May 1, 2011, but not earlier, is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke., 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.