Citation Nr: 21021441 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 12-00 125A DATE: April 13, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 16, 2008 to May 4, 2016 is granted. FINDING OF FACT From December 16, 2008 to May 4, 2016, the Veteran was rendered unable to maintain (follow) substantially gainful employment as a result of the service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met from December 16, 2008 to May 4, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to June 1988. The Veteran filed a claim for increased rating in excess of 10 percent for the service-connected right knee arthritis disability from December 16, 2008, which was denied in a March 2009 rating decision. The Veteran filed a notice of disagreement in February 2010 and a statement of the case (SOC) was issued in November 2011. The Veteran filed a substantive appeal (VA Form 9) in January 2012. The Veteran testified at a Travel Board hearing in St. Petersburg, Florida, in May 2015 before the undersigned Veterans Law Judge. During the May 2015 Travel Board Hearing, the Veteran testified that he has not worked for several years because of the service-connected right and left knee disabilities. The hearing transcript has been associated with the record. In July 2015, the Board remanded the claim for increased rating of the right knee arthritis and entitlement to TDIU. The Board remanded the right knee claim to obtain additional medical records and schedule a VA examination. The TDIU issue was remanded as well because it was intertwined with the right knee issue. An October 2016 supplemental statement of the case (SSOC) denied the claim for TDIU. The Veteran filed an incomplete application for increased compensation based on unemployability (VA Form 21-8940) in November 2016, which was denied in a January 2017 rating decision. The Veteran filed another incomplete VA Form 21-8940 in July 2017. This matter was before the Board again in April 2018. The Board remanded the TDIU claim in order to give the Veteran the opportunity to submit a complete VA Form 21-8940. The Veteran filed a complete VA Form 21-8940 in July 2019. The appeal was again denied in a June 2020 SSOC. This matter was before the Board again in October 2020. The Board granted entitlement to TDIU from May 4, 2016 and remanded entitlement to TDIU from December 16, 2008 to May 4, 2016 to the Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). A January 2021 rating decision effectuated the TDIU grant in the October 2020 Board decision (for the period from May 4, 016). In January 2021, the Director of Compensation and Pension Service denied entitlement to TDIU for the period from December 16, 2008 to May 4, 2016. A February 2021 SSOC denied entitlement to TDIU from December 16, 2008 to May 4, 2016. Legal Authority for TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2).  TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b).  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. The Board notes that this combination should be made in accordance with 38 C.F.R. § 4.25, The Combined Ratings Table.  If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b).  Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3.  In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.  Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a).  The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).  TDIU from December 16, 2008 to May 4, 2016 is granted. The Veteran contends that the disabilities in both knees prevent him from maintaining employment, specifically stating that he had to stop work after left knee surgery. See May 2015 Transcript. The Veteran explained that he worked several jobs, including at Corrpro Companies from 2002 to 2003, Industrial Cold Storage in 2003, Adecca USA in 2004, and Allied Plastics from 2005 to 2006. The Veteran completed four years of high school and two years of college. The Veteran did not receive education or training since he became too disabled to work. See July 2019 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940).  After a review of the lay and medical evidence of record, the Board finds that, for the period from December 16, 2008 to May 4, 2016, the evidence is in equipoise as to whether the Veteran is rendered unable to maintain (follow) substantially gainful employment as a result of the service-connected disabilities. For the period on appeal from December 16, 2008 to May 4, 2016, the Veteran was service connected for the left knee status post arthroplasty rated at 30 percent from July 1, 2008, the right knee fracture residuals rated at 10 percent from June 23, 1988, and right knee instability rated at 10 percent from December 15, 2014. The Veteran submitted to a VA examination in January 2009. The Veteran reported pain in both knees, pain associated with weather changes, and pain after sitting or standing for two hours and after jumping. While the Veteran reported no problems with daily activities, the Veteran used a cane and brace to ambulate and reported that he has been unable to work as a painter since left knee surgery. Service treatment records indicate that the knee disabilities have prevented the Veteran from maintaining employment. The Veteran reported constant pain with prolonged weight bearing and turning. The right knee is prone to giving way which caused the Veteran fall on multiple occasions. The VA examiners noted antalgic gait and that the Veteran was favoring the left knee with use of cane and a brace for stability. The Veteran expressed concern about significant lifestyle and activity limitations that the knees imposed. See December 2011 VA Treatment Records; July 2012 VA Treatment Records; November 2012 VA Treatment Records. According to Social Security Administration (SSA) documents submitted to the record in June 2014, SSA awarded the Veteran unemployment benefits, finding arthrofibrosis in the knees. SSA records indicate that, after a face-to-face inspection, the Veteran had difficulty sitting, standing, and walking. The Veteran also used a cane for mobility. All of the occupations listed in the SSA documents involve physical labor, like maintenance, painting, and warehouse stocker. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was unable to maintain substantially gainful employment as a result of service-connected disabilities for the period from December 16, 2008 to May 4, 2016; therefore, a TDIU is warranted for this period. 38 C.F.R. §§ 3.340, 3.341, 4.16. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.